FEDERAL COURT OF AUSTRALIA

Algama v Minister for Immigration & Multicultural Affairs [2001] FCA 1884

MIGRATION – appeal from Judge of Court to Full Court – whether primary judge erred in dismissing applications for review of RRT’s decisions – where Migration Act 1958 (Cth) ss 424A-424C creates procedure for RRT to invite applicant to comment where it has possession of particular information – where Migration Act 1958 (Cth) s 425(1) as retrospectively amended obliges RRT to invite applicant to appear before it to give evidence and present arguments relating to issues arising in relation to decision under review – where primary Judge decided Migration Act 1958 (Cth) s 425(1) does not oblige RRT to invite applicant for second time where after first time RRT comes into possession of information manifesting additional issues – where primary Judge so decided because he considered himself bound by Full Court decision.

PRECEDENT – whether primary Judge erred in considering himself so bound – whether open to primary Judge to refuse to follow Full Court decision because given per incuriam – whether Full Court decision’s rationes decidendi included above interpretation of Migration Act 1958 (Cth) s 425(1) – whether Full Court decision distinguishable – whether present Full Court should decline to follow earlier Full Court decision – whether earlier Full Court decision plainly or patently wrong or has produced unintended and perhaps irrational consequences not foreseen by earlier Full Court when construing provision – whether open to present Full Court to conclude earlier Full Court decision so where High Court in dismissing application for special leave to appeal from earlier Full Court decision stated decision plainly right.

Migration Act 1958 (Cth) ss 423(1), 424A, 424B, 424C, 425, 426(3), 427(6), 428(5), 476(1)(a)

Migration Legislation Amendment Act (No. 1) 1998 (Cth) ss 2, 3, Sch 3, items 3, 20(1)

High Court Rules 1952 (Cth) O 69A r 4(2)

Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212 followed

Minister for Immigration & Multicultural Affairs v Cho (1999) 92 FCR 315 referred to

Mohammed v Minister for Immigration & Multicultural Affairs [2000] FCA 264 referred to

De Silva v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 364 referred to

Foster v Northern Territory of Australia [1999] FCA 1235 followed

Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 referred to

Cassell & Co Ltd v Broome [1972] AC 1027 referred to

Baker v The Queen [1976] AC 774 referred to

H C Sleigh Ltd v South Australia (1977) 136 CLR 475 referred to

Minister for Immigration & Multicultural Affairs v Prathapan (1998) 86 FCR 95 followed

Telstra Corporation Ltd v Treloar (2000) 102 FCR 595 followed

Thayananthan v Minister for Immigration & Multicultural Affairs [2001] FCA 831 followed

North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 referred to

Bird v Colonial Spark Plugs Pty Ltd (1942) 66 CLR 43 referred to

Ex p Zietsch; Re Craig (1944) 44 SR (NSW) 360 referred to

Mason, “The Use and Abuse of Precedent”, (1988) 4 Aust Bar Rev 93

SABRINA TAMARIS ALGAMA v

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

V 352 of 2001

RAJITHA SANTHUSH ALGAMA v

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

V 353 of 2001

FRENCH, WHITLAM & KATZ JJ

SYDNEY (HEARD IN MELBOURNE)

24 DECEMBER 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1                    The appeal be dismissed.

2                    The appellant pay the respondent’s costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1                    The appeal be dismissed.

2                    The appellant pay the respondent’s costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     FRENCH J: For the reasons given by Whitlam and Katz JJ, I agree that these appeals should be dismissed.

Associate:

Dated: 24 December 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

2                     WHITLAM & KATZ JJ: There are before the Court two appeals. One of those two appeals has been brought by Mr Rajitha Santhush Algama, while the other has been brought by Mr Algama’s wife, Ms Sabrina Tamaris Frances Algama. The sole respondent to each appeal is the Minister for Immigration & Multicultural Affairs (“the Minister”). The Court has heard the two appeals together and it is convenient, since there is no material difference between them, to deliver one set of reasons for judgment in respect of both of them.

3                     The procedural background to the two appeals is as follows: each of the Algamas applied separately to the Minister for the grant of a protection visa. One delegate of the Minister (“the delegate”) dealt with the two protection visa applications and rejected both of them. Each of the Algamas then applied to the Refugee Review Tribunal (“the RRT”) for review of the delegate’s protection visa decision applicable to him or her. The RRT, constituted in both cases by the same member, affirmed both of the delegate’s protection visa decisions. Each of the Algamas next applied to the Court for review of the RRT’s decision applicable to him or her. The Court, constituted by a single Judge, heard the two applications for review together and dismissed both of them, giving one set of reasons for doing so: see Algama v Minister for Immigration & Multicultural Affairs [2001] FCA 476 (North J, 27 April 2001, unreported). Each of the Algamas next appealed to this Court from the judgment given by the primary Judge applicable to him or her.

4                     The notices of appeal in the two appeals were materially identical, each relying on one ground of appeal only. That ground of appeal was, in effect, that the primary Judge had erred in holding that the RRT had not been “obliged pursuant to s 425 of the Migration Act to offer the appellant a second hearing in the circumstances of the case” (original emphasis omitted; our emphasis added). (In truth, what was meant by the words which we have emphasised was “invite the appellant to appear before it a second time”.)

5                     That ground of appeal was available to the Algamas because, before the primary Judge, they had unsuccessfully claimed, in effect, that the RRT had failed to fulfil the duty imposed on it by s 425 of the Migration Act 1958 (Cth) (“the Act”) and that the RRT’s failure in that respect had enlivened, among other grounds of review, the ground of review available under par 476(1)(a) of the Act. The ground of review available under par 476(1)(a) of the Act was, at the relevant date, “that procedures that were required by this Act … to be observed in connection with the making of the decision were not observed”.

6                     (We note that the Algamas had also claimed before the primary Judge that the RRT had committed other judicially-reviewable errors in connection with the making of its two decisions, but did not pursue, in their appeals from the primary Judge’s judgment, his rejection of their claims in that respect.)

7                     In order to make explicable both the course of the proceeding before the primary Judge and the sole ground of appeal in each of the two appeals, it is necessary to mention certain matters both relating to the form of the Act from time to time and relating to the RRT’s conduct of the reviews of the delegate’s two protection visa decisions regarding the Algamas.

8                     We have already mentioned above that the reviews by the RRT of the delegate’s two protection visa decisions regarding the Algamas were conducted by the same RRT member. As part of that review process, the RRT gave to each of the Algamas an opportunity to appear before it to give evidence. The RRT’s giving to each of the Algamas such an opportunity had been required by par 425(1)(a) of the Act as that paragraph had read at the relevant date. At that date, that paragraph had provided that, subject to an exception immaterial for present purposes, “the Tribunal … must give the applicant an opportunity to appear before it to give evidence” : see reprint no 6 of the Act as of 31 January 1996. The opportunity given by the RRT was taken up by each of the Algamas, their appearances occurring concurrently on 8 February 1999.

9                     Then, after the appearances of the Algamas before the RRT to give evidence, the RRT wrote to the solicitors acting for both of them. Among other things, the RRT’s letter enclosed a report prepared by the Department of Foreign Affairs and Trade (“the DFAT”), which report had come into existence after 8 February 1999. That report related to the Algamas’ claims to be refugees and had been solicited from the DFAT by the RRT. The RRT invited the solicitors to provide any comments on the DFAT report that they might wish to make, a course which the solicitors took. The RRT’s conduct of sending the DFAT report to the Algamas’ solicitors and inviting their comments on it had not been engaged in pursuant to any provision of the Act applicable at that date dealing specifically with information such as that in the DFAT report.

10                  After the solicitors had provided to the RRT their comments on the DFAT report, there commenced, on 1 June 1999, certain amendments to the Act, those amendments being made by the Migration Legislation Amendment Act (No. 1) 1998 (Cth) (“the amending Act”). Among those amendments were the repeal of the former s 425 of the Act, the substitution of a new s 425 and the addition of ss 424A-424C to the Act: see subss 2(1) and (2) and s 3 of, and item 3 and subitem 20(1) of Sch 3 to, the amending Act; see also Commonwealth Gazette No S51, 5 February 1999.

11                  The new subs 425(1) of the Act now imposes on the RRT generally a duty to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The new subs 425(2) of the Act, however, prescribes circumstances in which the duty imposed on the RRT by the new subs 425(1) of the Act does not apply. Among those circumstances (see the new par 425(2)(c) of the Act) is that subs 424C(2) of the Act (to be summarised below) applies to the applicant.

12                  Having now mentioned so much of the new s 425 of the Act as is relevant for present purposes, we turn to ss 424A-424C of the Act, so far as those provisions are relevant for present purposes.

13                  If the RRT is in possession of any information (other than information of one of the types referred to in subs 424A(3) of the Act), which information the RRT considers would be the reason or a part of the reason for affirming the decision which is under review, then subs 424A(1) of the Act imposes on the RRT three duties: first, to give to the applicant particulars of that information; secondly, to ensure, as far as is reasonably practicable, that the applicant understands why that information is relevant to the review; and, thirdly, to invite the applicant to comment on that information.

14                  The invitation to the applicant to comment on that information must specify the way in which the comments may be given, being the way the RRT considers is appropriate in the circumstances: subs 424B(1) of the Act.

15                  A way expressly referred to in the Act as one which may be specified in an invitation as the way in which the comments may be given is at an interview. If the invitation specifies that way as the way in which the comments may be given, then the invitation must also specify the time and place of the interview: see subs 424B(3) of the Act.

16                  Although it is not expressly referred to in the Act, another way which may be specified in an invitation as the way in which the comments may be given is obviously in writing. If the invitation specifies that way as the way in which the comments may be given, then the invitation must also specify a period within which the comments are to be given: see subs 424B(2) of the Act.

17                  If the applicant is invited under s 424A of the Act to comment on information, but does not give the comments before the time for giving them has passed, then the RRT may make a decision on the review without taking any further action to obtain the applicant’s views on the information: see subs 424C(2) of the Act, already mentioned above in connection with the new s 425 of the Act.

18                  After the commencement of the new ss 424A-425 of the Act, the RRT, on two occasions before making its decisions with respect to the Algamas, invited them to comment in writing on certain further information which it gave to them, explaining at the same time why it considered that information to be relevant to its review. On the first of those two occasions, the Algamas were invited to comment on the information contained in a further report prepared by the DFAT which the RRT had solicited, which DFAT report had come into existence after 8 February 1999. On the second of those two occasions, the Algamas were invited to comment on the information contained in three newspaper articles, all three of which had come into existence after 8 February 1999. It is apparent from the terms of the invitation on each occasion that (as was conceded by the Algamas during oral argument on the appeals) those invitations were given by the RRT in purported compliance with s 424A of the Act. On each of the two occasions, the Algamas availed themselves of that invitation.

19                  It should be mentioned here that the invitation to the Algamas to comment on the information contained in the three newspaper articles had stated that that information was “relevant to the review because it indicates that the blast in which Major General Algama was killed was part of an LTTE [that is, Liberation Tigers of Tamil Eelam] terrorist plan directed at disrupting the Presidential poll”. The Algamas’ claims to refugee status had depended in part on their alleged relationship to Major General Algama.

20                  On no occasion after the commencement of the new s 425 of the Act did the RRT invite either of the Algamas to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review applicable to him or her. (Nor, it may be added, did either the Algamas or their solicitors submit to the RRT at any stage after 1 June 1999 and before the date of its decisions with respect to the Algamas that it was under any obligation to give them such an invitation.)

21                  Having now discussed certain matters both relating to the form of the Act from time to time and relating to the RRT’s conduct of the reviews of the delegate’s two protection visa decisions regarding the Algamas, we turn to the Algamas’ submissions before the primary Judge and to the manner in which the primary Judge dealt with those submissions.

22                  We have already mentioned above the repeal and replacement of s 425 of the Act on 1 June 1999. Before the primary Judge, the Algamas’ first submission to which it is appropriate to refer for present purposes was that the Court should proceed on judicial review on the basis that the pre-1 June 1999 version of s 425 of the Act had applied to the RRT until 1 June 1999 and that the post-1 June 1999 version of s 425 of the Act had applied to the RRT after 1 June 1999.

23                  The primary Judge rejected that submission by the Algamas, holding (see his reasons for judgment at [94]) that the effect of subitem 20(1) of Sch 3 to the amending Act had been,

“… to alter the obligation of the Tribunal after 1 June 1999 with retrospective effect in respect of existing, uncompleted applications. Those applications were to be dealt with as if the amended obligation [had] existed from the commencement of the application.”

24                  (It is convenient to note now that, before this Court, the Algamas did not dispute the correctness of that holding by the primary Judge.)

25                  Before the primary Judge, the Algamas submitted, in the alternative to their first submission to which we have referred above, that the Court should instead proceed on the basis that the RRT had, from 1 June 1999, come, retrospectively to the commencement of their applications for review by the RRT, under the duty imposed by the post-1 June 1999 version of s 425 of the Act. The Algamas further submitted that, after their respective appearances before the RRT on 8 February 1999, “issues”, within the meaning of the new subs 425(1) of the Act, had arisen in relation to each of the delegate’s protection visa decisions under review which had not existed on 8 February 1999 and that the effect of the new subs 425(1) of the Act was that, in those circumstances, the RRT had been obliged to invite each of them to appear before it again, so that they could give evidence and present arguments relating to those new issues. The Algamas claimed that those new issues had been manifested by the information on which the RRT had invited them, on three separate occasions, to comment.

26                  The primary Judge also rejected that submission by the Algamas, in substance, by reference to the decision of a Full Court of this Court in Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212 (Whitlam, Tamberlin & Sackville JJ). It is convenient to discuss that decision immediately.

27                  In Win, the RRT had, on 14 October 1999, invited Mr Win to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review by it. On 12 November 1999, Mr Win had accordingly appeared before the RRT for those purposes. On 29 November 1999, the RRT had, in accordance with s 424A of the Act, invited Mr Win to comment in writing on information in its possession which it considered would be at least a part of the reason for affirming the decision which was under review by it. That information was contained in a letter which an individual had written to the Minister’s Department concerning Mr Win (“the dob-in letter”), which letter had come into the RRT’s possession after Mr Win’s appearance before it on 12 November 1999. Shortly thereafter, Mr Win did comment in writing on that information. Shortly thereafter, the RRT made its decision, but despite the information contained in the dob-in letter, the RRT had not, before making its decision, again invited Mr Win to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review by it.

28                  Among the complaints made by Mr Win on judicial review of the RRT’s decision affirming the decision under review by it was that the RRT had not again invited him to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review by it. Mr Win submitted that the new s 425 of the Act had required the RRT to give him such an invitation, since the information contained in the dob-in letter had raised an issue in relation to the decision under review relating to which he had not formerly been given an invitation by the RRT to give evidence and present arguments.

29                  In unanimous reasons for judgment, the Full Court rejected that submission. It said,

“[24] The appellant had been invited by the RRT on 14 October 1999 to attend the hearing that took place on 12 November 1999. That invitation satisfied the requirements of s 425(1) of the Migration Act: see Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315 at 331, per Sackville J; De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364 at 367-368.

[25] The appellant contended that the RRT was obliged to give him a further opportunity to appear to give evidence. According to Ms Winfield [that is, counsel for Mr Win], the dob-in letter raised fresh issues that had not been addressed at the hearing held on 12 November 1999. It followed, so it was argued, that the appellant had not been given an adequate opportunity to give evidence ‘relating to the issues arising in relation to the decision under review’.

[26] This submission overlooks the fact that Div 4 of Pt 7 of the Migration Act sets out detailed procedures to be followed where the RRT, as in this case, has information that it considers would be the reason or part of the reason for affirming the decision under review. Section 424A(1)(c) obliges the RRT to invite the applicant to comment on the information. Section 424B(1)(b) provides that any such invitation must ‘specify the way in which the…comments may be given, being the way [the RRT] considers is appropriate in the circumstances.’ Section 424[B](2) makes it clear that the invitation to make comments may specify a means of commenting otherwise than at an interview. Where the invitation does so, the comments are to be given within the period specified in the invitation. There is nothing to indicate that the statutory procedures do not apply to information received by the RRT after it has held a hearing.

[27] In the present case, the RRT determined that it was appropriate for the appellant to provide written comments on the dob-in letter. Accordingly, the RRT’s letter of 29 November invited the appellant to comment in writing within 21 days. The RRT therefore followed the relevant statutory procedures. Those procedures did not contemplate that the appellant would be entitled to attend a further hearing.

[28] In our view, the detailed statutory procedure set out in Div 4 of Part 7 tells against the submission that the receipt of the dob-in letter imposed a fresh obligation on the RRT to provide a hearing in accordance with s 425(1). In any event, we do not accept that the dob-in letter raised new issues beyond those canvassed at the hearing of 12 November 1999. The first two claims in the dob-in letter concerned factual questions at the heart of the appellant’s case. The last two (not ultimately relied on by the RRT) went to the appellant’s credibility. It is clear from the RRT’s reasons that the appellant’s credibility was very much in issue at the hearing before the RRT.

[29] This contention must be rejected.”

30                  The primary Judge in the present matters dealt as follows with what the Full Court had said in Win:

“[84] I take the Full Court to have rejected the applicant’s [sic] contention for two alternative reasons, namely, first, that the structure of the Act does not envisage more than one invitation under s 425(1) and, second, that the ‘dob-in’ letter did not raise any issues which had not been canvassed at the hearing. On this analysis both foundations of the decision are binding authority on a single judge. The first reason is decisive of the issue in the present case. Having received one invitation to appear the applicants were not entitled to a further invitation under s 425(1).

…

[89] … [T]he decision in Win … binds me to hold that there was no breach of s 425(1) in the respect alleged.”

31                  As well as their two submissions before the primary Judge to which we have already referred above, the Algamas made one further submission before the primary Judge which should also be mentioned for present purposes. The primary Judge characterised that submission as having been one that there existed a “general principle” implicit in the Act which applied to the new s 425 of the Act. That “general principle” was said to have entitled the Algamas to a further appearance before the RRT on the basis that otherwise they would have been denied a “genuine opportunity” to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. That general principle was said to have found its source in a statement made by Sackville J in his concurring reasons for judgment in Minister for Immigration & Multicultural Affairs v Cho (1999) 92 FCR 315 at 331, [66], (Tamberlin, Sackville & Katz JJ), which statement was afterwards adopted in Mohammed v Minister for Immigration & Multicultural Affairs [2000] FCA 264 at [9] (Sundberg, Katz and Hely JJ, 13 March 2000, unreported) and in De Silva v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 364 at 367-68, [9] (Hill, Carr & Sundberg JJ).

32                  The primary Judge dealt as follows with that submission:

“[68] … [T]he passage relied upon by the applicants from the judgment of Sackville J in Cho, which related to s 425(1)(a) [that is, the pre-1 June 1999 version of s 425 of the Act], and was approved in Mohammad [sic] and adopted in relation to s 425(1) [that is, the post-1 June 1999 version of s 425 of the Act] in De Silva, did not establish a principle that the section conferred a right on the applicants to a ‘genuine opportunity’ to appear and give evidence before the Tribunal. Rather, the passages were concerned to emphasise certain limits on the rights of applicants appearing before the Tribunal.

[69] … [Section] 425(1) was inserted by Parliament with the intention of limiting the rights of applicants to the receipt of an invitation to appear and give evidence, and to make it clear that the obligation on the Tribunal was confined to extending such an invitation, and did not extend to providing applicants with a genuine opportunity to be heard.

[70] Thus, the applicants[’] claim that under s 425(1) they were entitled to a ‘genuine opportunity’ to appear must fail.”

33                  Having now summarised what relevantly occurred before the primary Judge, we come to the submissions made by the Algamas on their appeals to this Court.

34                  The Algamas made two general submissions on their appeals to this Court, each general submission being supported by a number of specific submissions. The Algamas’ first general submission was that the primary Judge had erred in considering himself bound by Win to hold that the RRT had not failed to fulfil its duty under the new subs 425(1) of the Act. Their second general submission, in the alternative to their first, was that this Court should decline to follow Win. We will deal with those two general submissions in the order in which we have just set them out.

35                  The Algamas made a number of specific submissions in support of their first general submission, which specific submissions, although they were made in different language from that which we are about to use, amounted in substance to the following: first, Win had been decided per incuriam and therefore, even if its rationes decidendi had included a ruling about the construction of the new subs 425(1) of the Act, that ruling had not bound the primary Judge; secondly, the ruling in Win about the construction of the new subs 425(1) of the Act had not been a ratio decidendi; and, thirdly, the case before the primary Judge had been distinguishable on its facts from Win and therefore, even if the latter’s rationes decidendi had included a ruling about the construction of the new subs 425(1) of the Act, that ruling had not been required to be applied by the primary Judge.

36                  (We note that, before the primary Judge, the Algamas had made submissions broadly similar to the specific submissions which they made before this Court on the question whether the primary Judge was bound by Win to hold that the RRT had not failed to fulfil its duty under the new subs 425(1) of the Act. We note further that the Minister did not submit before this Court that it should refuse to permit the Algamas to make those specific submissions because they had not been made sufficiently distinctly below.)

37                  As to the first of the specific submissions, the way in which it was actually put before this Court was that the Full Court in Win: had not dealt with submissions as to the proper construction of the new subs 425(1) of the Act like those which were being made by the Algamas before the primary Judge; had not, in its reasons for judgment, referred to the language of the new s 425 of the Act; had, in its reasons for judgment, dealt only with ss 424A-B of the Act; and had not, in its reasons for judgment, dealt either with s 424C of the Act or with the significance of that section’s not applying when the applicant has commented in a timely way pursuant to an invitation to do so under s 424A of the Act.

38                  The Algamas’ first specific submission must be rejected.

39                  In Foster v Northern Territory of Australia [1999] FCA 1235 at [32] (French, Tamberlin & Sackville JJ, 31 August 1999, unreported), a Full Court of this Court exercising original jurisdiction described submissions made by the applicants before it that a particular decision of the High Court of Australia did not bind the Full Court as “an invitation to revisit the decision on the basis that not all materials or arguments that could have been put before the Court were put before it”. The Full Court continued, “The applicants’ submissions amount to an invitation to find that the decision of the High Court was made per incuriam”. In rejecting that invitation, the Full Court quoted approvingly what Moffitt P had said in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177:

“The per incuriam rule is not available to a court in relation to a decision of a court superior in the hierarchy. It is a rule which applies only to a review by a court of its own decision. An equivalent result cannot be achieved by regarding a binding decision of the superior court as distinguishable on the basis that it did not decide the question which it did by making the order that it did, but that it only decided the question apparently argued before it or on the basis that its reasons were its decision.”

The Full Court in Foster also, without quoting it, invited attention to what Lord Diplock had said in Cassell & Co Ltd v Broome [1972] AC 1027 at 1131. Lord Diplock’s remarks, which had been quoted by Moffitt P in Proctor at 179, had foreshadowed those later made by Moffitt P in Proctor.

40                  In addition to what had been said by Moffitt P in Proctor and by Lord Diplock in Cassell, we note that a majority of the Judicial Committee of the Privy Council (Lords Diplock, Simon of Glaisdale and Cross of Chelsea and Sir Thaddeus McCarthy), relying on Cassell, had expressed a similar view about the operation of the per incuriam rule in Baker v The Queen [1975] AC 774 at 788 (as had the sole dissentient, Lord Salmon, at 795). The majority had pointed out that to permit the use of the per incuriam rule by a court inferior to the court the precedential effect of whose decision was in issue “would open the door to disregard of precedent by the court of inferior jurisdiction by the simple device of holding that decisions of superior courts with which it disagreed must have been given per incuriam”.

41                  We agree with the approach to the per incuriam rule taken by the courts (including a Full Court of this Court) to which, and the judges to whom, we have referred above. Contrary to the Algamas’ submission, it would not have been open to the primary Judge in the present matters to conclude that Win had been decided per incuriam and that therefore, even if its rationes decidendi had included a ruling about the construction of the new subs 425(1) of the Act, that ruling did not bind him.

42                  As to the second of the specific submissions to which we have referred above, the way in which it was actually put before this Court was that the Full Court in Win had clearly been of the view that the dob-in letter had not raised a new issue not existing at the date of Mr Win’s appearance before the RRT.

43                  That specific submission must also be rejected.

44                  We have already set out at [28] of these reasons for judgment the entirety of the passage from the reasons for judgment of the Full Court in Win relevant to Mr Win’s contention before it that “the RRT was not entitled to take the contents of the dob-in letter into account unless it invited the appellant to appear before it again in person, in conformity with s 425(1) of” the Act: see Win at 216-17, [13], second bullet point, for the Full Court’s expression of that contention. It will be noticed that [28] in that passage from the Full Court’s reasons for judgment fell into two parts.

45                  First, there was the Full Court’s view, in effect, that the presence in Div 4 of Pt 7 of the Act (comprising ss 423-429A) of detailed procedures, particularly those in ss 424A-424B, to be followed where the RRT has information that it considers would be the reason or part of the reason for affirming the decision under review negatived a conclusion that the RRT’s receipt of the dob-in letter had imposed a fresh obligation on the RRT in accordance with the new subs 425(1) of the Act to invite Mr Win to appear before it.

46                  Secondly, there was the Full Court’s view, introduced by the words, “In any event”, that the dob-in letter had not raised new issues beyond those canvassed when Mr Win had appeared before the RRT on 12 November 1999.

47                  To our minds, the plain intent of the words, “In any event”, was to convey the idea that, even if the correct construction of the new subs 425(1) of the Act had been contrary to that which the Full Court had just given to it, that would still not have availed Mr Win, since, even on that contrary construction of the new subs 425(1) of the Act, he would nevertheless have failed in his appeal, given the facts of his case.

48                  It can thus be seen that the second part of [28] in the Full Court’s reasons for judgment in Win constituted no ratio decidendi of the case at all (compare [84] of the primary Judge’s reasons for judgment, quoted at [29] above), let alone implying that the first part of [28] had been intended by the Full Court to constitute mere obiter dictum. Therefore, contrary to the Algamas’ submission, the primary Judge would have erred if he had held that the Full Court’s ruling in Win about the construction of the new subs 425(1) of the Act had not been a ratio decidendi of the case.

49                  As to the third of the specific submissions to which we have referred above, the way in which it was actually put before this Court was that, in Win, the information on which the applicant had been invited to comment had come to the RRT unsolicited, the information had not related to any “independently verifiable event” and the time between Mr Win’s appearance before the RRT and the RRT’s decision had been short. By contrast, in the present matters, at least the DFAT information on which the Algamas had been invited to comment had been solicited by the RRT itself, at least the information in the three newspaper articles on which the Algamas had been invited to comment had related to an “independently verifiable event”, namely, the death of Major General Algama, and the time between the Algamas’ appearances before the RRT and the RRT’s decisions had been long. It was also put, presumably as a conclusion to be derived from the matters which we have already mentioned, that the Full Court in Win had not been “seeking to set down a principle in all cases” where an applicant had already appeared before the RRT pursuant to invitation under the new subs 425(1) of the Act. All of those matters were said to lead to the conclusion that the primary Judge should have distinguished Win.

50                  As with the Algamas’ other specific submissions in support of their first general submission, we reject their third specific submission as well. One of its difficulties, on which we need not elaborate for present purposes, is its reliance on the concept of the existence of an “independently verifiable event” as a point of factual distinction between Win and the present case. However, what is a more significant difficulty for the submission is that, as was said by Jacobs J (in dissent, although that does not affect the soundness of his Honour’s point) in H C Sleigh Ltd v South Australia (1977) 136 CLR 475 at 514, “If the earlier case is to be distinguished, the point or points of distinction must be relevant to the subject matter upon which the Court has given its decision….”

51                  In Win, the subject matter on which the Full Court was giving its decision was a point of statutory construction. We are unable to see how the points of factual distinction relied on by the Algamas between Win and the present matters are relevant to that subject matter. Contrary to the Algamas’ submission, it would therefore not have been open to the primary Judge to distinguish Win on its facts from the matters before him and, in that way, to avoid the obligation to apply the Full Court’s ruling about the construction of the new subs 425(1) of the Act.

52                  We turn now to the Algamas’ second general submission before this Court, namely, that this Court should decline to follow Win.

53                  The Algamas were prepared, in connection with that submission, to shoulder the burden of establishing that the Full Court’s decision in Win had been “plainly wrong”, on the basis that otherwise this Court would not decline to follow that decision. In shouldering that burden, the Algamas treated it as having been imposed on them by Minister for Immigration & Multicultural Affairs v Prathapan (1998) 86 FCR 95 (Burchett, Whitlam & Lindgren JJ). In that connection, they referred only to the reasons for judgment of Lindgren J in that case (at 104), although we note that in that case Whitlam J (at 96) expressed (unqualified) agreement with the reasons for judgment of Lindgren J, while Burchett J (also at 96) expressed “general” agreement with those reasons.

54                  More recently than Prathapan, however, there have been other discussions in Full Courts of this Court as to “the circumstances in which it will be appropriate to review an earlier decision” of a Full Court. The words which we have just quoted come from the joint reasons for judgment of Branson & Finkelstein JJ in Telstra Corporation Ltd v Treloar (2000) 102 FCR 595 at 602, [26]. In discussing those circumstances, their Honours said (at 602-03),

“[27] The problem is very real when what is at issue is the construction of a statute. For one thing, statutory language is often ambiguous. Courts can struggle to determine the legislative intent. It is often impossible to discover any legislative intent. In many instances the generality of the statutory language is deliberate and allows the courts to develop a body of law to fill the gaps. This may lead to disagreement among judges about what the statute means. It would be sound policy that once that intent has been discerned by an appellate court then that should be the end of the matter.

[28] The view which we prefer is that unless an error in construction is patent, or has produced unintended and perhaps irrational consequences not foreseen by the court that created the precedent, the first decision should stand. In other areas of the law a precedent may be reconsidered if its underlying reasoning is outdated or is inconsistent with other legal developments. Perhaps, with some modification, in some instances these factors could also be applied to cases concerned with the construction of statutes. Accordingly, we venture to suggest it would be on a rare occasion that an intermediate appellate court (contrast the position of the High Court, as to which see Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1) will allow an issue concerning the construction of a statute, past and closed …, to be thrown open, producing as it clearly will, uncertainty, disruption to the conduct of affairs, a sense of grievance in those who may consequently receive treatment less favourable than that received by others under the same statute and additional cost and expense.”

Their Honours’ discussion which we have just quoted has been referred to with approval subsequently by other Full Courts of the Court, including in Thayananthan v Minister for Immigration & Multicultural Affairs [2001] FCA 831 (Moore, Tamberlin & Goldberg JJ, 4 July 2001, unreported). In Thayananthan, the Full Court added (at [31]) that it was “necessary to emphasise … the importance of Full Courts of this Court as intermediate courts of appeal adopting a consistent approach when interpreting legislation”.

55                  It will be apparent that the approach taken by Branson & Finkelstein JJ in Telstra, of which approach we also approve, has particular relevance for present purposes, given that the Algamas are inviting this Full Court to decline to follow the construction given to the new subs 425(1) of the Act by the Full Court in Win.

56                  It must be said immediately that the Algamas’ arguments on the aspect of their appeals presently under discussion have not demonstrated to us either that there exists a patent error by the Full Court in Win in its construction of the new subs 425(1) of the Act or that that construction has produced unintended and perhaps irrational consequences not foreseen by the Full Court in Win.

57                  In effect, the Algamas merely adopted in support of their appeals the construction of the new subs 425(1) of the Act which the primary Judge stated in obiter (at [85]-[88] of his reasons for judgment) that he would have adopted had he not been bound by Win and then sought to persuade this Full Court of the plain wrongness of the Win Full Court’s construction of the provision merely by reference to the existence of the reasons given by the primary Judge for that alternative construction.

58                  Such an approach by the Algamas paid lip service only to the need to persuade a Full Court, before it departs from an earlier Full Court construction of a statutory provision, not only that a different construction is, on balance, preferable, but that the earlier Full Court construction was plainly (Prathapan) or patently wrong or has produced unintended and perhaps irrational consequences not foreseen by the earlier Full Court when construing the provision (Telstra).

59                  It is not necessary for us for present purposes to rehearse in their entirety the reasons given by the primary Judge for preferring a different construction of the new subs 425(1) of the Act from that given by the Full Court in Win. However, we do wish to make two particular points about his Honour’s reasons in that respect.

60                  First, there was, of course, nothing inappropriate in his Honour’s expressing the view that the Full Court’s construction in Win of the new subs 425(1) of the Act was wrong, as he, in effect, did. Nor would there have been anything inappropriate in his Honour’s expressing the view, if he held it, that the Full Court’s construction of the new subs 425(1) of the Act had been, not only wrong, but had either been plainly or patently wrong or produced unintended and perhaps irrational consequences not foreseen by the Full Court when construing the new subs 425(1) of the Act. However, his Honour did not take that latter step. We assume that he did not take that latter step because he considered that such a view simply could not be held so far as the Win Full Court’s construction of the new subs 425(1) of the Act was concerned.

61                  In that connection, it is worthy of note that Mr Win sought from the High Court special leave to appeal from the Full Court’s judgment in Win. A copy of Mr Win’s application in that respect was served on the Federal Court in accordance with O 69A, subr 4(2) of the High Court Rules 1952 (Cth). That copy discloses that the application included as a ground on which special leave to appeal was being sought, as one would have expected, that the Full Court had erred in holding that the receipt by the RRT of the dob-in letter had not imposed on the RRT under the new subs 425(1) of the Act a fresh obligation to invite Mr Win to appear before it. Mr Win’s application for special leave to appeal was unanimously dismissed by McHugh, Kirby and Callinan JJ on 16 October 2001, some months after the primary Judge had given judgment in the present matters. On the hearing of the present appeals, the Algamas provided this Court with a transcript of the oral hearing of Mr Win’s application for special leave to appeal, from which one discovers that Mr Win did not appear at that hearing. When Mr Win’s non-appearance became known, McHugh J then said on behalf of the court (emphasis added),

“The Court is in a position to give judgment in this matter.

The Court is of opinion that the decision of the Full Court of the Federal Court is plainly right. An appeal would have no prospects of success.

The application is dismissed with costs”

Before this Court, the Algamas conceded in oral argument, referring to what had been said by the High Court in dismissing Mr Win’s application for special leave to appeal, “[C]learly it is a strong statement by three High Court judges in support of the case of Win”. That statement by the Algamas was an accurate one.

62                  Of course, the High Court’s reasons for dismissing the application for special leave to appeal did not create a precedent binding on this Court: see, for example, North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 643 (McHugh J). However, those reasons provided “guidance” to this Court: see Bird v Colonial Spark Plugs Pty Ltd (1942) 66 CLR 43 at 47 (Starke J); they amounted to “dicta”: Ex p Zietsch; Re Craig (1944) 44 SR (NSW) 360 at 368 (Jordan CJ; Davidson and Street JJ concurring (at 370)); they had “persuasive value”: see Sir Anthony Mason, “The Use and Abuse of Precedent”, (1988) 4 Aust Bar Rev 93 at 97. To say the least of it, those reasons of the High Court would make it difficult for this Court to conclude that the Full Court’s construction in Win of the new subs 425(1) of the Act had been wrong, let alone that it had been plainly or patently wrong or had produced unintended and perhaps irrational consequences not foreseen by the Full Court when construing the new subs 425(1) of the Act.

63                  The second point which we wish to make about the reasons given by the primary Judge for preferring a different construction of the new subs 425(1) of the Act from that given by the Full Court in Win is that, in those reasons, his Honour appears to have proceeded on the bases both of a desire, whether conscious or unconscious, to ensure that the procedures adopted by the RRT reproduced, so far as possible, the procedures traditionally adopted by courts and of a belief that an applicant’s right to appear before the RRT pursuant to an invitation given under the new subs 425(1) of the Act carried with it the functional equivalents of the procedural rights which a party acquires as a result of that party’s right to appear before a court.

64                  As to his Honour’s apparent belief, it was incorrect, given a number of provisions of the Act, to none of which his Honour referred in his reasons for judgment. First, an applicant’s right to appear before the RRT expressly does not carry with it the rights: to require the RRT to obtain evidence from other persons (subs 426(3) of the Act); to be represented before the RRT by some other person (par 427(6)(a) of the Act); to examine or cross-examine any other person appearing before the RRT to give oral evidence in the applicant’s review (par 427(6)(b) of the Act); or even to give one’s own oral evidence in the presence of the member constituting the RRT (subs 428(5) of the Act). Secondly, subs 423(1) of the Act entitles an applicant to put before the RRT both sworn or affirmed written evidentiary material in relation to any matter of fact that the applicant wishes the RRT to consider and written arguments relating to the issues arising in relation to the decision under review. Thus, the belief on which his Honour appears to have proceeded both overemphasised the importance to an applicant of being accorded serial rights to appear before the RRT and to have underemphasised the means otherwise available to an applicant to influence the outcome of a review by the RRT.

65                  As to his Honour’s desire, that desire is not one which we consider that, in enacting the relevant provisions of the Act, including, in particular, the new subs 425(1) of the Act, the Parliament shared.

66                  For the reasons given above, the Algamas’ appeals should be dismissed with costs.

Associate:

Dated: 24 December 2001