MIAC v SZJYA & Anor

[2009] HCATrans 52

[2009] HCATrans 052

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S327 of 2008

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

SZJYA

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MARCH 2009, AT 12.20 PM

Copyright in the High Court of Australia

MR S.B. LLOYD, SC:   May it please the Court, I appear in this matter with my learned friend, MR P.D REYNOLDS.  (instructed by Australian Government Solicitor)

MR D.K. CATTERNS, QC:   May it please the Court, I appear with my learned friend, MR H.P.T. BEVAN, for the first respondent.  (instructed by the respondent)

GUMMOW J:   There is a second respondent which is the Tribunal.  There is a submitting appearance.  Mr Lloyd - and I am really saying this to both of you, I think - there is presently a matter set down for hearing in the Full Court on 31 March which raises some of the issues of law that might be raised here.  I cannot think of the relevant collection of initials.  I think it is ‑ ‑ ‑

MR LLOYD:   SZJGV.

GUMMOW J:   Yes, that is right.  It appears at the bottom of page 81 of the book.  There is a reference to it.  That has now been set down.  The question arises whether we should stand this application over pending the outcome of that case?

MR LLOYD:   The ultimate outcome of the case.

GUMMOW J:   Yes.

MR LLOYD:   Well, for my part, your Honour, my friend in his written submissions has indicated that he does not see the decision of Justice Rares as relying upon that case.  I have indicated in my summary of argument that we could succeed even if SZJGV was correctly decided, but certainly if it is not correctly decided that point would certainly entirely disappear.

GUMMOW J:   Let me see what Mr Catterns thinks.

MR CATTERNS:   Your Honour, we certainly ran our case below as a section 425 case, but his Honour Justice Rares does deal with, as we see it, a subsidiary basis of his Honour’s reasoning at paragraphs 59 through 61, I think.  That, I suppose, would give us an alternative way of putting it if your Honours were to uphold the Full Court’s decision.  In other words, it is possible that it could have an impact, we think, your Honour, accepting fully that what our friends said was correct about the characterisation of our case up to now.

GUMMOW J:   I think you are both saying politely that the real point is the section 425 point or the heavier point ‑ ‑ ‑

MR CATTERNS:   It is from our point of view, your Honour, yes.

GUMMOW J:   Is that true for you too, Mr Lloyd?

MR LLOYD:   Yes, your Honour.  I suppose my client is interested in, as it were, determining principles and clarifying relevantly 425 so this Court’s decision in SZJGV will resolve that point of the cases, we would expect.  So from that point of view my client’s principal concern is 425.

GUMMOW J:   Do we have any pending appeals raising a 425?

MR LLOYD:   Not that I am aware of, although I would have to say that there is a case which is set down on 2 April, for which I am appearing for the Minister.  There are two appeals and in one of them the other side could have put on a notice of contention.  They have not yet put on a notice of contention, but I would say that there is certainly a section 425 issue that could arise in that case if they put on a notice of contention.  I should say, they did argue the 425 point in the court below and the court below in that case did not decide the point.  So yes, there is an appeal that could raise 425, but as it is currently pleaded it does not.

GUMMOW J:   Thank you.

MR CATTERNS:   Your Honours, I beg your Honours’ pardon.

GUMMOW J:   Yes, go on.

MR CATTERNS:   I am sorry to rise again.  It does seem to us looking at his Honour’s reasons at 59 - and it might require some aspect of reconstituting our arguments - but we submit ‑ ‑ ‑

GUMMOW J:   What paragraph?

MR CATTERNS:   Paragraph 59 at page 61, your Honour, that if the Full Court’s judgment in SZJGV were upheld we would be able to rely on his Honour’s reasoning at 59 independently of 425.

GUMMOW J:   I thought so.  Yes, well, we are minded, subject to being dissuaded, to stand over the special leave application pending the outcome in that appeal presently fixed for 31 March and would make no order as to today’s proceeding.

MR LLOYD:   Certainly, your Honour, I do not wish to ‑ ‑ ‑

GUMMOW J:   So application No 6 will be stood over to be restored to the list after the delivery of reasons in the appeal indicated as presently listed for 31 March and costs today will be costs in the leave application.  So is there anything else needed to be done at this stage?

MR CATTERNS:   I think not, your Honour.  Thank you.

GUMMOW J:   We will adjourn to reconstitute.

AT 12.26 PM THE MATTER WAS CONCLUDED