MIMIA v QAAH of 2004 & Anor

[2005] HCATrans 1033

[2005] HCATrans 1033

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B73 of 2005

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Applicant

and

QAAH OF 2004

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 DECEMBER 2005, AT 11.38 AM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC:   If the Court pleases, I appear with MR A.J. McINERNEY for the applicant.  (instructed by Clayton Utz)

MR B.W. WALKER, SC:   May it please the Court, I appear with my friend, MR M.O. PLUNKETT, for the first respondent.  (Terry Fisher & Company)

GLEESON CJ:   Mr Gageler, we thought we would be assisted by hearing from Mr Walker in this matter.

MR GAGELER:   If your Honours please.

KIRBY J:   There is a diversity of opinion in the Federal Court on this question, is there not?

MR WALKER:   Yes.

KIRBY J:   There are two lines of authority and it is arguably an important matter which can only really be sorted out in this Court, so why should we not do that?

MR WALKER:   The best answer that I can give is that this decision sorts it out.  This decision which we submit is right is a decision of the Full Court.

KIRBY J:   Yes, but if we refused special leave, it does not increase the authority of this decision.  It simply awaits a time when this Court can pass on the matter if the judges of the Federal Court continue to take their different views of the requirements of the Act.

MR WALKER:   I seek to persuade your Honour that this Court should not make a burden for itself by noting a sequence of Full Court decisions and that there has been disagreement and therefore saying that only in this Court can certainty be brought.

KIRBY J:   It is not only the sequence, it is also the fact that there is a disagreement in this very case.  Justice Lander dissented, therefore the matter is in a sense tendered to us by this very case.

MR WALKER:   Your Honour, I do not know whether this makes myself a hostage to fortune for a long future but, in our submission, it would be an equally inappropriate approach for this Court to regard dissents as such as an indication of a candidate for the grant of special leave.  Collegiate benches must proceed by majority decision.

KIRBY J:   That is true, but if the dissent reveals a point of principal indifference between the judges that is often helpful – at least it is helpful to me.

MR WALKER:   Your Honour, whether it be dissent or in a majority a persuasive set of reasons to consider a matter in this Court is a persuasive set of reasons.  The fact that there is dissent is not in itself, in our submission, a relevant factor for the Court to take ‑ ‑ ‑

KIRBY J:   I am not saying you would not win in the end.  There are, as it seems to me, quite strong reasons for the view of the majority in this case but it affects people who are in a vulnerable position.  It is a matter of general principle, it is a matter on which we would helped, one would think, with the decisions of overseas courts that have dealt with the issue, and it is a matter which touches upon this country’s fulfilment of its obligations in international law, whatever they may ‑ ‑ ‑

MR WALKER:   All of that, your Honour.

KIRBY J:   All of that seems to be persuasive of a grant of special leave especially because of the disparity.

MR WALKER:   Only, of course, if there was left by special leave being refused a state of affairs which prevents the efficient administration of justice at the levels below this Court where nearly all administration of justice must be confined - not all such cases can come here - and in our submission, stare decisis, the decision of this Full Court is enough for this purpose.  It settles it, and there is no need for the case to go further unless the Court were persuaded that there were a sufficient prospect that the result would be overturned.

KIRBY J:   It is an interesting question.  I throw that into the amalgam.

MR WALKER:   Your Honour, I cannot gainsay that it is an interesting question.  All decisions below and the speeches in the House of Lords on the somewhat related matter in Hoxha to which reference has been made extensively make that clear, but interesting questions are bound, with respect, and this Court would be hearing cases from the 1960s still if interest was the only criterion for special leave.

KIRBY J:   Not every case we hear is interesting.

GLEESON CJ:   No.

MR WALKER:   No, your Honour.  Well, one adds the interesting ones to the not so interesting ones, then perhaps the 1940s would be a better assessment.  Your Honours, in our submission, that does leave them the question, because I here represent not a cause or an idea but a person affected by a decision who has the benefit of a Full Court decision.  The question then is should this Court grant special leave with the effect that has on an individual’s position at law ‑ ‑ ‑

KIRBY J:   That seems relevant to the issue of costs.  If we grant special leave, have you had any discussion with Mr Gageler, who is always very generous in these matters.

MR WALKER:   I am sure he is constrained by his authority, your Honour – no, I have not.  In our submission, were statute to permit it, this is an ideal case, were your Honours minded to grant special leave, were statute to permit it, this would be an ideal case for that which in paragraph 23 of my learned friend’s written submissions is offered.

GLEESON CJ:   What page is that, Mr Walker?

MR WALKER:   That is on page 154 of the application book.

KIRBY J:   Yes, that is right, paragraph 23.  It is a very proper offer by a minister.

GLEESON CJ:   That would really make it unnecessary for us to say anything presumably except that we note that.

MR WALKER:   Yes, your Honour.  Now, your Honours, if I may, notwithstanding the force of the indications that have been made clear to us, try to persuade your Honours that if this is a point where there are aspects of the Convention that will eventually perhaps justify this Court looking at the jurisprudence in the Federal Court, together with such comparative law as will be relevant then, the way in which the issue arises for my client is not an appropriate vehicle to test this idea – if I may crudely paraphrase the more subtle way in which my learned friends put their point – that there has been some onus of proof error by the majority in the Full Court.

GLEESON CJ:   One thing that occurred to me, Mr Walker, was this.  If the view of the majority in the Full Court of the Federal Court is right, although superficially it appears to be a view that favours people in your client’s position, it may produce the practical consequence of inhibiting the grants of temporary visas, may it not?

MR WALKER:   That would depend upon whether there were perhaps irrelevant considerations being taken into account in the discretion whether to grant.

GLEESON CJ:   But the effect of the majority view is, is it not, that when a temporary visa expires you then apply the cessation provisions of the Convention?

MR WALKER:   Yes.  They are always available to be raised by the country in question.  The effect of the majority is to say, but they do need to be raised.  There needs to be a justification for moving from the status, which is a status at law in this country, not just an international law, from the status which is presently enjoyed – to use a rather fraught word in this context – by a person such as the first respondent here.  That is a status of immense and profound importance to individuals and their families and it is a status which one would expect by reference to elementary expectations of the administration by the Executive of the law as well as the administrative of the law by the judiciary in this country would result in an expectation that people relying upon a change of circumstance, so as to produce a different status will, as it were, kick off with the material.

Now, the Full Court, in our submission, in the context of the facts related to my client’s position, has quite appropriately recognised that though talk of onus of proof is a crude use of language for a concept which cannot be meekly fitted into the administrative steps required by statute in this country to fulfil our international obligations, there is nonetheless when the choice has to be made in evaluating material the salient fact – a legal fact, a fact of international law, a fact of profound personal implication – that somebody has been recognised as entitled to the protection of Australia under the Convention.

In our submission, for that to be changed by what might be called an unknown invisible self‑executing effect is something which this Court would not regard as either a practicable reading of our statute or as a purposive reading of the Convention.

KIRBY J:   In effect, are you saying that if the Commonwealth wants to give holding visas that do not recognise any entitlement to refugee status under the Act they have to devise a new category?

MR WALKER:   They have to do it in such a way as not to subvert what the statute still does by way of municipal manifestation of the Convention obligations.  When someone who has been determined to have the refugee status by reference to what I will call by way of gloss a current fear, et cetera, then something happens which is intended to continue for more than one legal instant.  It is something by which ‑ ‑ ‑

KIRBY J:   But it is only a temporary protection, though?

MR WALKER:   Of course, but it is something by which people can live.  It is not something that scintillates and is gone.  If that be – and that must be the only practical and purposive intent of the Refugee Convention which is about the movement of people sometimes vast distances, always in an uprooted way and always driven by a motive which excites pity rather than opposition to their entry and staying, then, in our submission, one is talking about a period which is necessarily indefinite.

Now, the question is whether the system which is presently in force in this country in relation to these temporary visas is to be construed between the lines, because it is not in the words, as amounting to a determination of somebody being entitled to protection under the Convention of this country which is always expressed so as to end with the visa that may follow.  That does not appear in the statute.

It does not say I determine you have a fear and provisionally I say that fear will, if it has not disappeared earlier, have disappeared by this date, or at least, in the administration of this statute to manifest international obligations of a humanitarian kind we are going to treat it on the basis that you are going to have to go back to a stage before the one you have already on the merits achieved.

It is not in the statute, it is certainly not in the Convention and, in our submission, it is a powerful reason why in the context of this present case what might be called the temporal accident by which the permanent visa comes to be considered at a particular time, and one would say at a particular state of flux and dynamic change in another country about which imperfect knowledge is had that, in our submission, does not indicate that a legal principle of the kind that the applicant wants to raise and what is unquestionably an interesting area of law and international obligations, that does not suggest this case is at all a promising vehicle because the material, in our submission, was not such as to justify the manner of approach the Tribunal in the first instance judge achieved.

For those reasons, in our submission, the particular factual circumstances which your Honours have read in the judgments and seen referred to in the written submissions are such as to leave this case an inappropriate vehicle for argument that is clearly important, an argument which, in our submission, ought to await a case where the allocation of something that I am, I know, crudely calling onus, really would matter.  May it please your Honours.

GLEESON CJ:   Thank you, Mr Walker.  We do not need to hear you, Mr Gageler.

In this case there will be a grant of special leave to appeal.  We note in that regard what appears in paragraph 23 on page 154 of the application book concerning costs.

We will adjourn for a short time to reconstitute.

AT 11.53 AM THE MATTER WAS CONCLUDED