MIAC v SZIAI & Anor

[2009] HCATrans 28

[2009] HCATrans 028

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S458 of 2008

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

SZIAI

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2009, AT 12.13 PM

Copyright in the High Court of Australia

MR G.T. JOHNSON:   May it please your Honours, I appear for the applicant.  (instructed by Sparke Helmore)

MR J.G. AZZI:   May it please your Honours, I appear for the respondent.  (instructed by Dobbie and Devine Immigration Lawyers Pty Ltd)

GUMMOW J:   There is a submitting appearance from the Tribunal.  Yes, Mr Johnson.

MR JOHNSON:   Your Honours, if I could perhaps start by noting two things, albeit somewhat anticlimactically because in a sense they are both more of a housekeeping nature.  The first matter I would like to note is the position in relation to costs.  In the application book at page 43, in the course of the draft notice of appeal, it is indicated that the applicant does not seek to disturb the orders for costs that were made by the Full Court of the Federal Court of Australia.

GUMMOW J:   Where do we see that?

MR JOHNSON:   I am sorry, your Honour.  It is page 83.  I think I said page 43 inadvertently.  I apologise to your Honour.  The applicant does not seek to disturb the orders for costs that were made by the Full Court of the Federal Court of Australia and the applicant would also agree to an order that the Minister pay the costs of the first respondent of the appeal to the High Court.  I can clarify to your Honours that my client’s agreement to pay the first respondent’s reasonable costs extends to the special leave application regardless of the outcome.

GUMMOW J:   ....., is not, is it?

MR JOHNSON:   No, it is not.  The last part is not, your Honour.  It is that clarification that I am offering to the Court for the first time.  Secondly, your Honours will have noticed from the first respondent’s written submissions that a case was put by the first respondent to the effect that the applicant was precluded from special leave by the way in which the case was conducted below.  It was suggested, in effect, that it was conceded or agreed that evidence was available which was critical in the relevant sense and which could readily have been obtained.

That submission, or any submission to that effect, I gather is no longer pressed by the first respondent.  In its reply, the applicant noted – and this is at page 104 of the application book before your Honours – that counsel for the present applicant in the proceedings below, Mr Reilly, did not dispute the existence of the line of cases, including Le, upon which the judgment of Justice Flick purportedly depended, but it was not conceded that those cases obliged the Tribunal to make further inquiry here and, in fact, it was contended that they did not. 

I do not propose to burden your Honours with the transcript because it is now agreed that we are not precluded by the way in which the matter was conducted below, but I thought I should flag that in case your Honours were concerned about it.  I might just ask my friend to confirm his position.

MR AZZI:   We did have a very brief discussion outside.  I was not aware that the full extent of that discussion would lead to this.  All I wanted to add to my friend’s submission in this regard is that his Honour Justice Flick basically recorded how the case was conducted before him and the concessions made by the present applicant and the first respondent, the counsel for both.

As far as not pressing the line of inquiry issue, his Honour did ventilate that issue and my learned friend, who was not appearing below but another counsel, agreed that there was a line of inquiry that could have been conducted.  So if I am mistaken, I think ‑ ‑ ‑

MR JOHNSON:   In which case, I have misunderstood my friend’s position and it probably will be necessary for me either at the end of my submissions or in reply to take your Honours to the transcript to show your Honours that counsel appearing for the Minister below was in fact suggesting that this was not a Prasad ‑ ‑ ‑

GUMMOW J:   How would this impact upon the hearing of the appeal if you are granted of special leave?

MR JOHNSON:   It may not, your Honours.  Mr Azzi would contend, it would seem, that it was conceded below that there was, in fact, a fulfilment of the elements of what I will call the Prasad line of cases.  We say that that was not conceded.  We say that Mr Reilly, who was appearing for the Minister, was contending that the federal magistrate was correct and that that line of authority, which includes Prasad and Le, had no application here.  Perhaps if I outline to your Honours what ‑ ‑ ‑

GUMMOW J:   I think we are seized to what the case is all about.

MR JOHNSON:   Thank you, your Honour. 

GUMMOW J:   There seems to be a resuscitation of Prasad.  I was an AD(JR) case, was it not?

MR JOHNSON:   It was, indeed, your Honour, yes.

GUMMOW J:   The translation.....jurisdictional error.....which is another dimension.

MR JOHNSON:   That is right.  And we say a widening of the Prasad principle on top of that.

GUMMOW J:   And a.....in any event.

MR JOHNSON:   That is right.

GUMMOW J:   Would you be wishing us to consider Prasad if you got a grant of special leave?  Has it ever been overruled?

MR JOHNSON:   Prasad, of course, was only a Federal Court decision.

GUMMOW J:   I know.  Has it ever been overruled in the Federal Court?

MR JOHNSON:   I do not think it has ever been overruled per se, your Honour, no.  There is a long line of cases which refer to it.

GUMMOW J:   I think it is had a very healthy life though.

MR JOHNSON:   Well, it is certainly a decision which has had its impact on Federal Court jurisprudence in the context of the AD(JR) Act.  But translating it to the Migration Act in circumstances where there is no legislative provision requiring the kind of inquiry that Justice Flick suggested – and, indeed, his Honour found and took it as agreed that there was no legislative duty to inquire – is another matter.  We would say that if the legislation does not require the inquiry to be made, then that is probably the end of the matter.  But certainly we say that even if the concept of jurisdictional error was wide enough to embrace the Prasad principle via Wednesbury unreasonableness – that is not something we concede – but even if that is so, then his Honour, with respect, went beyond the Prasad principle for the reasons that we have stated in writing.  I thank your Honour.

GUMMOW J:   Yes, Mr Azzi.

MR AZZI:   Your Honours, this case really does turn on its facts, its well settled principles of law.  His Honour well understood that ‑ ‑ ‑

GUMMOW J:   .....anything in Prasad goes to jurisdiction.....

MR AZZI:   Well, your Honour, we agree that the Tribunal has a discretionary power to exercise to make further inquiries.  In certain rare exceptional circumstances, whether that power was unreasonably avoided or not used in furtherance of the review task is a question of unreasonableness.  The review of that power, it is always open to criticism.  So it is not an unfettered power.  It does have that 424A.  It says you can ‑ ‑ ‑

GUMMOW J:   I think that is the question for debate.

MR AZZI:   Your Honour, I think it is to facilitate the inquiry and to facilitate the review task of the Tribunal.  It is not to overwhelm the Tribunal.  It is there to assist.  In certain instances what would assist the Tribunal is to make a further inquiry when it is seized of information that is troubling, that is, in exceptional circumstances.  In this particular instance the first respondent was told, “There is no other way we can verify your religion except through inquiry through this association.  If this association does not give the certificate, therefore, no matter what you say to us, you are not an Ahmadiyya”.

The certificate comes back.  It says, “He is not on our records” and it says, “by the way, and the certificates he has produced in corroboration are fake and forged”.  The troubling aspect of that is twofold.  The first thing is, there is a religious association saying, “He is not in our records”.  If I may just deal with that.  The applicant said before he made the inquiry – the Tribunal asked him, “I will draw an adverse inference if you do not consent to me making an inquiry”.  The applicant, under reservation said, “Well, okay, make the inquiry but we say that it is apprehended bias.  You are prejudging us before you even start”. 

Then the Tribunal goes through, the presiding member, three or four pages explaining why it is not apprehended bias.  He makes the inquiry and then the association says, “No, he is not on our records”.  But the evidence of the applicant in the court below was, “This association has a problem with me.  There are personal jealousies”.  Your Honour, if I may take you to that evidence at application book 17, in the last sentence:

The applicant said that they might have some perception of him because he had married a Sunni girl or some personal jealousy of him.

This is to him by the association.  Then he also says at 14, point 10, he says, “They have a bad attitude towards me”.  The applicant said that because he had not obtained their permission the Ahmadiyya Jamaat had had a bad attitude towards him.  So the Tribunal knew that there were some personal grievances.  Then the Tribunal says to him at application book 1, point 40, in the last paragraph:

I put to the applicant that the Ahmadiyya Muslim Association of Australia had advised the Tribunal in 2004 that it issued letters verifying that applicants for refugee status were Ahmadi and that there was no other way to have the claim of a person of being an Ahmadi verified.

So we are hamstrung.  We are told that the association has a problem with us and then he says the association says, “It is the only way I can verify this”.  Then the association comes back and says, “Well, here is a letter from the Bangladeshi association that says, we do not have any record of you and, besides, the certificates corroborating your version are fake and forged”.  So there is a further bit of evidence that the Tribunal did not ask for that it had to consider.  As his Honour Justice Flick in the court below respectfully correctly found, there were diametrically opposed pieces of evidence that the Tribunal then had to sift through.

GUMMOW J:   It happens all the time.

MR AZZI:   Absolutely, your Honour, but in this case there was only one way you could verify it and that was that certificate.  In SZJBA, the case before Justice Allsop which is in our submissions, a five‑page fax came in – only one page of a five‑page fax was received by the Tribunal.  There his Honour Justice Allsop said it was unreasonable not to have inquired about the remaining four pages or five pages.

In Le Justice Kenny said, “Well, I feel uncomfortable that a five‑and‑a‑half hour interview resulted in only five transcribed pages or seven transcribed pages.  That cannot be the extent of the interview; therefore it is unreasonable not to make further inquiries”.  Whether or not the information would have helped is neither here nor there.  It is whether the exercise of that power was reasonable or not in those circumstances.

What is so surprising about this particular application is that we say that his Honour Justice Flick even took it further.  He did not widen the principle, he actually limited the principle.  What I could discern from his Honour in paragraphs 24 to 26 of his Honour’s judgment clearly articulate that.  Your Honours, I could make out five limiting factors from those judgments.  At paragraph 25 his Honour correctly says it is a confined category of case, this unreasonableness of the use of exercise of power.  Then he goes on ‑ ‑ ‑

GUMMOW J:   What constitutes the confinement?

MR AZZI:   Your Honour, that is in the circumstances of the particular case.  It is a factual case.  This Court should not be troubled with – there is nothing that my friends say has widened the principle.  His Honour was troubled by the circumstances but he said, “Look, there is only one way we can verify you are an Ahmadi” and his Honour then says that you also have to take into account the relative resources of the applicant.

We are not talking about a business visa, we are not talking about a company saying that the Minister should have considered some report that is available to it.  We are talking about a refugee or claimant, alleged refugee.  So there has to be some discernment, some differentiation between the two.  That comes up from paragraph 26.  Your Honour, we are not saying that the Tribunal in every instance has to make further inquiries.  Again, his Honour there talks about a comparative difficulty in some circumstances.  Also the further category, diametrically opposed evidence ‑ ‑ ‑

GUMMOW J:   .....is it not, because at the end of the day it is said that this is Wednesbury unreasonableness, is it not?

MR AZZI:   Yes, it is ‑ ‑ ‑

GUMMOW J:   .....within jurisdictional error, is it not?

MR AZZI:   Wednesbury unreasonableness in this particular case, there is a jurisdictional fact which is critical, essential, relevant inquiry.  So it becomes a jurisdictional fact.  The fact is, it did not further investigate that jurisdictional fact.  It was seized with imperfect information because – also the Tribunal was aware that any document coming out of Bangladesh was suspicious, but this particular document that they relied on that says they were fake and forged was also from Bangladesh.  So it is very selective use of the information.  All the factors lead to the fact that this Tribunal was being unreasonable.  It was saying, “Look, I am not satisfied your certificates are fake and forged because I have information that says ‑ ‑ ‑

GUMMOW J:   It is not a question of whether a Tribunal is being unreasonable.....so unreasonable that no reasonable decision‑maker could have reached it.

MR AZZI:   Your Honour, we say it is so ‑ ‑ ‑

GUMMOW J:   .....standard, I think.

MR AZZI:   It is a pretty high standard, but it has not been – it has been met in past instances, your Honour, without much fuss and the Minister has not appealed any of the other cases.  His Honour Justice McHugh in Teoh’s Case 183 CLR 273 at 321, if I may read it, acknowledged that there is such a limited case, recognised that, and the Full Courts in the Federal Court

have also applied Prasad.  It is all based on Prasad, and since 1985.  So it has been going for 24‑odd years.

GUMMOW J:   That is not a case about jurisdictional error.....

MR AZZI:   .....about AD(JR), but it has been applied ‑ ‑ ‑

GUMMOW J:   .....AD(JR) was a.....widening of these notions, but Parliament has chosen to contract them.  The question is, what follows from that contraction back to jurisdictional error?

MR AZZI:   Your Honour, under the Migration Act the Tribunal must act fairly on the merits of the case.  That is a statutory requirement.  So unreasonableness is not acting fairly and justly.  So there will always be a review on the basis of unreasonableness whether it is ‑ ‑ ‑

GUMMOW J:   I think these are matters to be sorted out if there is a hearing on an appeal.  Is there anything more you want to say just on the leave application?

MR AZZI:   No, your Honour.

GUMMOW J:   There will be a grant of leave in this matter and it will be comfortably within a one day case, will it not, gentlemen?

MR JOHNSON:   Yes, your Honour.

MR AZZI:   Yes, your Honour.

GUMMOW J:   The grant of leave is conditioned upon the appellant not seeking to displace the cost orders in the Federal Court and on the appellant in this Court bearing reasonable costs of the first respondent including the costs of the special leave application.  We will adjourn to reconstitute.

AT 12.34 PM THE MATTER WAS CONCLUDED