APP15 v Minister for Immigration and Border Protection & Anor

[2016] HCATrans 221

[2016] HCATrans 221

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B36 of 2016

B e t w e e n -

APP15

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for reinstatement

KIEFEL ACJ

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 13 SEPTEMBER 2016, AT 10.17 AM

Copyright in the High Court of Australia

MR S. BARATARAJ:   May it please the Court, I appear on behalf of the applicant.  (instructed by the applicant)

MR B. McGLADE:   May it please the Court, I appear for the first respondent.  (instructed by Sparke Helmore)

HER HONOUR:   I think there is a submitting appearance for the second respondent.  Mr Barataj, the position of the Minister seems to be that it is not suggested that the delay in filing the written submissions has caused any difficulty, although the Minister does point to there being a further delay then in bringing the application for reinstatement.

MR BARATARAJ:   Correct.

HER HONOUR:   That does not concern me so much.  The real issue here seems to be whether or not the application for special leave has any prospects of success.  That is the key issue.

MR BARATARAJ:   That is correct, your Honour.  I have to address this matter because first of all the purpose of the application for – of this interlocutory application is to reinstate the application for special leave.  The Minister filed a response to the application to reinstate the matter and also had – asked this honourable Court to hear the potential arguments of the case.  The Minister filed his response on the weekend which contained significant information supporting the Minister’s argument.

HER HONOUR:   Yes.

MR BARATARAJ:   Now, I was away on the weekend in Melbourne.  I had to attend a matter in a court in Melbourne and I only came back evening – yesterday evening and I had a look at it and I – it is very difficult for me to prepare detailed submissions in response to the application – response. 

HER HONOUR:   I would have thought that some consideration would have been given to the question of the applicant’s special leave point when the application for reinstatement was made because it really comes down to one thing.

MR BARATARAJ:   Yes.

HER HONOUR:   That is whether or not the question that is raised about whether or not the Tribunal should have made its own enquiries, whether that question has been actually dealt with by this Court in the Minister v SZIAI because if that is the case, then the application for special leave contains no question of general importance and the question has been determined against the applicant.

MR BARATARAJ:   That is correct, your Honour, but what actually happened here is I just had a glance at some of the arguments in the response, right.  First of all, I can only give a brief outline of what had happened considering the lack of time for me to adequately prepare a total reply to the response of my learned friend.  The general thrust of the application refers to the obligation of the Tribunal under section 359 and 425 of the Migration Act.  Now, I would say 359, it says:

In conducting the review, the Tribunal may get any information that it considers relevant.  However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

Now, the applicant admits that it – I mean there is no obligation or duty to make enquiries, right.  However, in a situation where the matter is very critical with respect to the application, right, then in order to make a reasonable decision there is somewhat of an onus on the part of the Tribunal to try to understand – to be able to refer and to find out the truth of the application.

The application refers to documents which were provided to the delegate as well as the Minister – to the Tribunal and the Tribunal – these documents were extremely relevant with respect to the application – applicant’s case because these documents refer to independent documentation provided by Members of Parliament, solicitor and UNHCR, right, which the Tribunal has refused to accept on the grounds that they suspect that he is not – what do you call – authentic.

Now, the question of authenticity of the documents also is important simply because that would give very high – great weight upon the applicant’s claim and submissions.  The respondent in paragraph 35 of submissions says – they refer to his Honour Justice Logan dismissing the SZIAI duty, but here his Honour has indicated that there was nothing that prevented the applicant from seeking to adduce further evidence from the three politicians or, for that matter, requesting the Tribunal to take evidence from them, right.

However, the applicant says it is very difficult to expect him to read the mind of the Tribunal or what the Tribunal was thinking with reference to the documents because at no time during the interview did the Tribunal inform the applicant that they are finding difficulty in accepting the authenticity of the documents per se, and the applicant contends that even if he has to adduce further evidence in the follow‑up documents it would not mean that the Tribunal would find them equally authentic.

So there was no way the applicant would be able to provide any evidence whatsoever to the Tribunal to substantiate his argument.  So it only leaves the Tribunal to make simple investigation on the authenticity of the documents, which the Tribunal failed.  Also the Tribunal has used this as very important criteria to reject the application.

Now, the application refers to the Minister’s arguments opposing the reinstatement in paragraph 18.  The Minister relies on two authorities to support the claim.  The applicant distinguishes these two cases.  In the matter of Francuziak v Minister, which the applicant has provided, the decision is referred to as a decision of the application to challenge the Minister’s decision – the Minister for Justice and not the Tribunal or the delegate of the Minister.

Also, paragraph 19 citation refers to the admission of new grounds and in this case…..because there are new grounds, no new grounds, the grounds are just the documentation ‑ ‑ ‑

HER HONOUR:   Well, there was an attempt to put fresh evidence before the Federal Court sitting as an appeal court ‑ ‑ ‑

MR BARATARAJ:   Yes, your Honour.

HER HONOUR:   Which was rejected.

MR BARATARAJ:   That is right.  Now, that was – what actually happened was when it was raised in the Federal Court, at that time there was no mention of the fact that the court will not accept the documentation, all right, because there was an appeal against the fact that the documents ‑ ‑ ‑

HER HONOUR:   I think the point that Justice Logan made was that it is not open to the appellate court to take in evidence that should have been tendered at trial.

MR BARATARAJ:   Yes, but it did not – in the trial in the Federal Circuit Court it was not evident that this matter is going to come to light and there was no way by which the applicant would have also again foresaw that this particular matter would come to light for the applicant to provide that evidence.

HER HONOUR:   Yes. 

MR BARATARAJ:   So it was necessary to admit the application – so the affidavit goes only to inform the court not as part of the material but to inform the court that the investigation of – simply a few minutes or call to the relevant authorities would have already authenticated the documentations.  That was the purpose of the affidavit and no other reason.  It is not going to seek interviews but to explain that it could have been done because it was done within a matter of a few minutes by just lifting the phone and dialling the number because all that information has been provided in the document, right, with respect to phone numbers, et cetera.

Now, the question of public interest – it is because of the fact that many of the applications made by asylum seekers here are being rejected solely on the grounds of failure to accept documentations provided to them and also they are not being informed that they do not accept the documents or giving the opportunity to the applicant to provide further.  So again, here the Minister or the Tribunal could have advised the applicant that they had issues in accepting those documents to see what can be done and work out a way by which the criteria they want – in which they would be able to accept the documents.  That was not done.

The thing is – in BZACX…..it said…..because the applicant did not make appeal the decision in the higher court.  Instead the applicant chose to make an application to the Minister for refugee intervention and when that failed the applicant decided to take the matter up to the High Court, to the higher Court, right, which obviously had by then gone to the statutory time bar and therefore that was a purpose to reinstate that particular application.  That also will not apply to this case.  That is my case, your Honour.

HER HONOUR:   Thank you.  Mr McGlade, is there anything further you wish to add to your written submissions?

MR McGLADE:   No, your Honour, just a couple of housekeeping matters.  I am instructed that the submissions were filed and served on Friday.

HER HONOUR:   Well, I have a note that they were filed on Friday.

MR McGLADE:   Okay.

HER HONOUR:   But you are instructed they were served as well.

MR McGLADE:   Yes.  The only other submission I would make, your Honour, is if this is the applicant’s case, they have apparently drafted a written outline for special leave.  They should be prepared to deal with a simple argument ‑ ‑ ‑

HER HONOUR:   I have not entertained an application for an adjournment.

MR McGLADE:   Your Honour, would the point - to the extent it is relevant, the issues with the documents were not raised with the applicant by the Tribunal.

HER HONOUR:   That is true in a way, is it not?  The applicant could not have put that evidence before the Tribunal because it did not know what views the Tribunal was going to take about it.

MR McGLADE:   Yes, your Honour.  Paragraph 37 of the Tribunal’s decision seems to – and that is exhibit ‑ ‑ ‑

HER HONOUR:   When the matter came before Justice Logan, the question of admissibility was probably twofold.  One is the restriction on an appellate court receiving the evidence, and secondly, its relevance.

MR McGLADE:   Yes, that is right, your Honour.

HER HONOUR:   Given SZIAI.

MR McGLADE:   Yes.  One of the points I just wanted to raise, obviously the whole appeal book is not in front of your Honour, but Ms Tattesall’s affidavit – exhibit ELGT‑4 ‑ ‑ ‑

HER HONOUR:   No, this is part of the record below, is it?

MR McGLADE:   Yes, the Tribunal decision.

HER HONOUR:   No, I do not have that.  I have the decision – the decision of the RRT?

MR McGLADE:   Yes, sorry, your Honour.

HER HONOUR:   Yes, I have the RRT decision.

MR McGLADE:   My apologies.

HER HONOUR:   Yes.

MR McGLADE:   Paragraph 37 of the RRT decision does seem to suggest that some issues with the documents were put to the applicant’s agent because specifically he requests that the benefit of the doubt be given.

HER HONOUR:   Yes, I see.

MR McGLADE:   Your Honour, I was going to go through a couple of cases about the relevant matters to consider but if your Honour agrees with the Minister’s submission that at least a reasonably arguable or some prospect of success has to be shown ‑ ‑ ‑

HER HONOUR:   Yes.

MR McGLADE:   I will not go ‑ ‑ ‑

HER HONOUR:   I think that is very well accepted.

MR McGLADE:   Your Honour, I would then – to repeat my written outline that this is a conventional application of SZIAI – the inquiry about the authenticity of the letters would not have achieved anything.  It is, in the Minister’s submission, an application that has no prospect and reinstatement should not be granted.  Unless your Honour has any particular questions.

HER HONOUR:   Yes, thank you, Mr McGlade.

The applicant seeks reinstatement of his application for special leave, which was deemed abandoned because the applicant failed to file his written outline of submissions within the time required by rule 41.05.1 of the High Court Rules 2004 (Cth). The first respondent, the Minister for Immigration and Border Protection, opposes that application.

The Minister accepts that the delay in filing the submissions was very short and that he is not prejudiced by it.  The Minister points out, however, that no explanation is given for the delay which then occurred in bringing the application for reinstatement.  If that was the only matter adverse to the applicant, I do not think it would justify a conclusion that the application should be refused.  But the real issue is whether the applicant’s case has any prospects of success.

The applicant’s only special leave point is that the Refugee Review Tribunal constructively failed to exercise its jurisdiction where it had doubts about the authenticity of certain documents produced by the applicants, given that it had the ability, the applicant says, to make simple enquiries itself to resolve those doubts.  This is said by the applicant to be a question of general importance warranting the grant of special leave. 

At the hearing this morning, counsel for the applicant conceded that, generally speaking, the Tribunal is under no obligation to make enquiries, but implied that the position is otherwise where the documents are critical to the Tribunal’s decision. 

The question concerning the documents arose in this way.  The applicant’s application for refugee status was based upon he and his family having a high profile connection with the political group, the Tamil National Alliance (“the TNA”).  The documents which the applicant produced to evidence this association included three letters from politicians.  The Tribunal considered that the letters lacked details indicative of an association between the author and the applicant and they were seemingly inconsistent with other evidence.  Absent such evidence, the Tribunal’s finding that the applicant was, at most, only a supporter of the TNA is unassailable.

The applicant’s application for judicial review to the Federal Circuit Court was dismissed.  On appeal to the Federal Court, the applicant sought to adduce evidence of some telephone enquiries of the politicians in question.  The Court refused to accept that evidence.  The applicant’s counsel pointed out during the hearing today that the applicant could not have known of the Tribunal’s view about the authenticity of the documents given that the reasons were not provided until much later.  There are some indications in the reasons of the Tribunal that the matter may have been raised during the hearing but it is not entirely clear.  Even accepting that the applicant could not have been alert to the Tribunal’s views about the documents, and could not have put on such evidence when the matter came before the Federal Court, the evidence was neither admissible on appeal, nor relevant.

The answer to the applicant’s special leave point is that the question has been determined by this Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 where it was held that the Tribunal was not under any duty to make such enquiries. In any event, in a case where credibility was the issue and the question whether documents are authentic, the utility of the suggested enquiries is not obvious.

The applicant has no arguable case to advance for special leave.  An application for reinstatement is therefore not warranted.  The application is dismissed with costs.

Thank you, gentlemen.  The Court will now adjourn.

AT 10.38 AM THE MATTER WAS CONCLUDED