Miah, Ex parte - Re Min for Immigration

[2000] HCATrans 4

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S199 of 1999

In the matter of –

An application for Writs of Prohibition, Certiorari and Mandamus against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

RAUL MENDOZA in his capacity as a delegate of the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

Second Respondent

Ex parte –

MD ATAUL HAQUE MIAH

Prosecutor

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 17 JANUARY 2000, AT 10.31 AM

(Continued from 20/12/99)

Copyright in the High Court of Australia

MR J. BASTEN, QC:   I appear with MR D.H. GODWIN for the prosecutor, if the Court pleases.  (instructed by R. Kessels)

MR P. ROBERTS, SC:   I appear for the respondents, if your Honour please.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Basten.

MR BASTEN:   Your Honour has the written submissions in this matter and the chronology.

HIS HONOUR:   Yes.

MR BASTEN:   As your Honour will appreciate, in substance, what happened here was that the prosecutor applied on 1 April 1996 for a protection visa in relation to affairs as they then stood for him in Bangladesh.  The decision was not made until in excess of a year later and during that period an election had taken place in Bangladesh which appears to have provided a fatal inference for the prosecutor's application.  In substance, it appears that the Delegate was minded to accept the claims of, indeed, actual harm.  I will not say this is the first case I have ever seen but that is the only case I can recall where a claimant has actually suffered actual harm, including 101 lashes in public.

HIS HONOUR:   Lashes, yes.

MR BASTEN:   The decision-maker then said that he was not satisfied that there was a real chance of persecution in Bangladesh, in substance, as we would understand, because of the change in government and although that change had occurred some nine months before the decision was made, the inference is drawn from that one Reuters' single-page press release that the change in government, in effect, had sidelined the fundamentalists. 

Now, as your Honour will appreciate, we say two things about that.  One is that if that were an inference to be drawn from that document, then we should at least have been given a copy of the document with the opportunity to comment and, secondly, that what, in substance, the decision‑maker did was to say that this new government was capable of offering effective protection to people in the circumstances of the prosecutor whereas, in substance, the problem that he faced was an unwillingness on the part of the government to provide protection albeit the capability was there.  And that, of course, we say is the second problem in relation to the way that it was dealt with at 3.4.3 in the decision.

Your Honour, there is an issue, I suppose, as to how one deals precisely with these cases where what is alleged is an unwillingness on the part of the government to provide protection but we say that there are, in effect, two aspects to the Convention in this regard.  One is the case where the government is unable to provide such protection and the second is the case where for reasons of Convention fear, the applicant is unwilling to seek that protection, presumably, in circumstances where even if the government is not the persecutor, it is either acquiescing in or is condoning the persecution by others by failing to provide the protection which a government nationality should provide.  In those cases - and I can take your Honour to some discussion of that distinction if your Honour wishes ‑ ‑ ‑

HIS HONOUR:   No, I am - - -

MR BASTEN:   - - - but it is dealt with - I think your Honour dealt with in Chan, and so on.

HIS HONOUR:   Yes.

MR BASTEN:   It really, as we would read the decision made - the Delegate's - - -

HIS HONOUR:   Well, I suppose the substance of your case is that given the change of government, really, the matter was - it was a new case.

MR BASTEN:   It was a new case.  That is so.

HIS HONOUR:   And you are at least entitled to the opportunity to address it or at least you have an arguable - - -

MR BASTEN:   That is so.

HIS HONOUR:   Yes.  Well, I understand that.  Yes, Mr Roberts.  You might have some trouble persuading me there is not an arguable case here, Mr Roberts.

MR ROBERTS:   Your Honour, what we say is that the procedure for dealing with applications is set out and - - -

HIS HONOUR:   It was set out by Justice Mason in Kioa and ordinarily one may be taken to think that that is the end of the matter and that the Tribunal is entitled to take account of its own general knowledge and it is up to the prosecutor to put what he wants to in support of it but here, in effect, you have a hearing and then you get a change of circumstances in a very material way and it is acted upon without giving the prosecutor any opportunity at all to deal with that change of circumstances.  Well, why is that not an arguable case for a breach of natural justice?

MR ROBERTS:   Your Honour, subdivision AB is headed "Code of procedure for dealing fairly, efficiently and quickly with visa applications".  Section 57 sets out information that must be given to an applicant.  Presumably, this is to reflect the Kioa-type situation.  The type of information that the decision-maker is required to disclose, presumably to invite comment on, is set out in section 57, and that is information which it is specific to the applicant.  Now, the procedure under section 57 does not require the disclosure of notorious political events.

HIS HONOUR:   I appreciate that but, you see, Annetts v McCann holds that the fact that legislation deals with certain matters going to the issue of natural justice does not mean, in the absence of a clear legislative intendment, that all other aspects of natural justice are excluded.

MR ROBERTS:   Well, that is the first plank.  Then I move to the second and the third, and there are two other planks in relation to that.  The first of the planks is this:  that in relation to the original decision, of course, that is subject to merit review in the RRT, so there is, one would have thought, little need to impose some extra procedural fairness implication on top of that which is provided in the legislation given that there is a merit review to the RRT.  Further, there is appeal from the decision of the RRT to the Federal Court on limited grounds, one of which is that the procedure set out in the Act was not followed.  But what is specifically excluded in section 476(2)(a) is the residual natural justice ground.

So, all of those matters put together, we submit, disclose a clear intention on the part of Parliament that the requirements in section 57 as to which information needs to be disclosed prior to a decision taking place, are set out there and there is no reason why a court would import some additional matter into the legislation.

HIS HONOUR:   But they are grounds in relation to the Federal Court, they are not grounds in relation to our jurisdiction and, query, whether or not the Parliament has any legislative power to prevent this Court examining questions of natural justice under its 75(v) jurisdiction.

MR ROBERTS:   What I am attempting to submit, your Honour, is that it is indicative of what Parliament intended in relation - - -

HIS HONOUR:   I understand.  Yes, you rely on 476(2), combined with 57, to say that provisions of 57 are intended to be exhaustive.

MR ROBERTS:   That is right.

HIS HONOUR:   Yes, I understand that.

MR ROBERTS:   Well, that is the argument, your Honour.  I do not think I can put more than that in relation - - -

HIS HONOUR:   No. 

MR ROBERTS:   - - - except as a matter of fact, we say, of course, notorious matters are dealt with everyday by decision-makers and it could hardly be said you have to give the applicant, whoever it may be, in whatever type of jurisdiction one is dealing with, your views on those types of matter before you reach a decision.

HIS HONOUR:   No, I know.  It is a matter that troubled me and I was thinking about it on Friday afternoon and again over the weekend but there may be a distinction between material beforehand.  The applicant has to put his material forward in a particular context but if after the event matters change and then the Minister or the Delegate relies on it, arguably, there is a question as to whether or not notice has to be given.  I think it does raise a question sufficient to go to the Full Court on an order nisi.  Yes. 

There will an order nisi issued in this particular case.  I refer the matter to the Full Court.  I certify for counsel in the matter.

MR BASTEN:   If the Court pleases.  Your Honour, I do note that the form in which we annexed to the affidavit was apparently a pre-October last year form.  I do have copies of a new form.  Would it be of assistance if I handed those up?  I do not think the substance of what your Honour would order changes in any respect but we were informed by the Registry that we had the wrong form.

HIS HONOUR:   Yes.  Yes, you have leave to file that if leave is necessary, Mr Basten.

MR BASTEN:   Thank you.

HIS HONOUR:   We will adjourn.

AT 10.43 AM THE MATTER WAS CONCLUDED