Minister for Immigration and Border Protection v SZMTA & Anor

[2018] HCATrans 34

[2018] HCATrans 034

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S245 of 2017

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Applicant

and

SZMTA

First Respondent

administrative appeals tribunal

Second Respondent

Application for special leave to appeal

KIEFEL CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 16 FEBRUARY 2018, AT 10.54 AM

Copyright in the High Court of Australia

MR G.R. KENNETT, SC:  May it please the Court, I appear with MS R.S. FRANCOIS for the applicant.  (instructed by Clayton Utz Lawyers)

MR S. BLOUNT:  May it please the Court, I appear with my learned friend, MR P.W. BODISCO, for the first respondent.  (instructed by Shelly Legal)

KIEFEL CJ:   Thank you.  I am sorry that there does not appear to be a lectern.  Are you able to manage without one, otherwise we can adjourn and borrow one.

MR KENNETT:   I can manage, your Honour.

KIEFEL CJ:   Mr Kennett, I think we might hear from the respondent.

MR KENNETT:   If the Court pleases.

KIEFEL CJ:   Thank you.

MR BLOUNT:   Your Honour, the reason we say leave should not be granted is because if your Honour turns to the primary contention of the applicant it is that his Honour below erred by relying on the mere possibility of an occurrence and that is repeated in the concise statement of the special leave questions which arise, which once again state that the Court relies on speculation.

KIEFEL CJ:   Speaking for myself, I would be assisted if you were able to outline just what his Honour’s reasoning path was.

MR BLOUNT:   His Honour’s reasoning path was unhelpfully not terribly well stated.  I will come back to the submission that that was evidence on which to base an inference that the critical document in support of the respondent of 13 August 2010 was in fact not regarded to but before I get there, his Honour’s reasoning, in my respectful submission, is as follows.

The respondent knew that all the Department’s files relating to the respondent’s protection visa applications were before the Tribunal because the Tribunal itself says that and that is at the application book at page 6, at point 11.  The respondent also knew, because of the successful FOI application that he had made, that the Department files contained favourable documents, including the email of 13 August 2010, which I have already referred to.  That particular document is at the application book 112.

The respondent would have an expectation in general law that favourable documents would be read and had proper regard to on any application by a respondent made to the Commonwealth of Australia.  What the respondent did not know was that the email of 13 August 2010, which I have referred to, was covered by the section 438 certificate.  Section 438 gives a discretion that section 438(3) ‑ ‑ ‑

KIEFEL CJ:   It is necessary for you to show that there has been a want of procedural fairness in relation to these documents when the documents were in your client’s possession or the legal representatives.

MR BLOUNT:   Yes.

KIEFEL CJ:   If there were something – we do not know what was in the documents and the point is that no one knows whether they were used in the reasoning below.

MR BLOUNT:   I believe there is evidence from which your Honour can infer they were used.

KIEFEL CJ:   If there was something adverse in the documents you would of course identify that, would you not?

MR BLOUNT:   Yes.

KIEFEL CJ:   If there was, on the other hand, something favourable, it would be expected that you would rely upon that in the hearing below.  So either way, do you not have to point to something, either adverse or in favour?  The silence here is deafening about what is in the documents.

MR BLOUNT:   Yes.  Your Honour, it should not be necessary to point to favourable documents upon being told that the decision‑maker has the ‑ ‑ ‑

KIEFEL CJ:   You have to point to some result about the documents, though.  You have to point to something likely having occurred with respect to the documents.

MR BLOUNT:   Yes.

KIEFEL CJ:   That is the whole point of this.  We are in a realm of speculation.

MR BLOUNT:   I understand, your Honour.  In my respectful submission, what happened is that there is evidence from which your Honour can infer that this particular document that I have been referring to does not have regard to and that is at the application book at page 19.  If your Honour goes to the bottom of page 19 at about point 40, you will see the Tribunal says:

The Tribunal has considered the documents and letters in support provided to the Department -

If your Honour then goes over the page to page 20, you will see that the decision‑maker has enumerated the documents that are in support of the applicant.  Now, in that enumeration of the documents, your Honour will not find the document of 13 August 2010.  So when his Honour says right at the end of the judgment ‑ ‑ ‑

KIEFEL CJ:   That was amongst the documents, the subject of the certificate?

MR BLOUNT:   Yes.

KIEFEL CJ:   You say it was in your favour and it should have been taken into account.

MR BLOUNT:   Yes.

KIEFEL CJ:   But you had it.  The point is why was it not put forward?  Where is the denial of procedural fairness?

MR BLOUNT:   The reason it is put forward is because there would be no necessity for us ‑ ‑ ‑

KIEFEL CJ:   But you would have relied upon it if it is said to be favourable.

MR BLOUNT:   We would have, with great respect, expected the Tribunal to know its business of general law and that it would take into account favourable documents.  In fact, what we did not know is that that document is sitting there subject to a discretion on the part of the decision‑maker, whether or not the decision‑maker may have regard to the contents of that document.  We do not know that the decision‑maker actually has a discretion.

KIEFEL CJ:   The point is, if it was so favourable to you ‑ you do not know that the decision‑maker has it – why would you not put it forward, if it was favourable to you?  Why would you not put it forward?

MR BLOUNT:   With respect, your Honour, although it was not physically handed up at the time of the Tribunal hearing, we are under the impression that it has been put forward and that it is in front of the decision‑maker because we know because we have received the FOI information, we know the document is there and we know that that document is in front of the Tribunal.

KIEFEL CJ:   So you do not mention it; you just hope that the Tribunal takes the same view of it as you do, that it is in your favour?

MR BLOUNT:   It is, with respect, your Honour, more than a hope; it is an expectation that the Tribunal will carry out its duty in a procedurally fair way.

KIEFEL CJ:   But you do not mention it to the Tribunal.

MR BLOUNT:   No, we do not.

KIEFEL CJ:   So you allow the Tribunal to either fall into error or not?

MR BLOUNT:   Yes.

KIEFEL CJ:   That way you could take advantage of an error, if that is the way it falls out.

MR BLOUNT:   I am not at all ‑ ‑ ‑

KIEFEL CJ:   This is game playing.

MR BLOUNT:   Yes.  I am not at all sure that that positive thought went through the applicant’s mind.

KIEFEL CJ:   Or any at all, by the sound of it.

MR BLOUNT:   That may be the case.

KIEFEL CJ:   That is perhaps not your strongest point.

MR BLOUNT:    The second point that I would make is that this is an application for special leave.  It does not really give rise to the point of principle.  Why?  Because of the very unusual facts that underline it, the facts where documents have already been produced to an applicant and then a certificate in the nature of 438 has been issued to the applicant are so unusual that it is highly unlikely that any decision that this Court would make in respect of these particular facts would have any application beyond the particular facts that the Court would be considering.

KIEFEL CJ:   The applicant for special leave says there are approximately 916 cases pending the Federal Court which involve non‑disclosure

certificates and notifications and that the question of drawing inferences or relying upon speculation in relation to establishing matters surrounding those certificates is a question of general importance.

MR BLOUNT:   It would be my submission, your Honour, that yes, there may be all of those cases in respect of these types of certificates that have been issued but the affidavit of Mr Aharoni does not detail with any specificity how those particular matters, beyond the fact that they deal generally with certificates, how these present facts would assist this Court in determining the more general outcome or the more general principle that might apply to all of these other cases.

So my submission returns to the high unusual nature of the facts of this case as suggesting that it is not a reasonable vehicle to determine a point of procedural fairness in a more general way.  Procedural fairness tends to turn on its own facts and this case certainly does.

There is a further point I would like to make, if I may, your Honour.  Your Honour has expressed yourself in respect of the fact that we have these documents in front of us.  In MZAFZ it is quite clear that the assumption made by the judge in that case as well is that the material covered by the certificate is not adverse, so it is the same situation that we are in.  In fact, the judge goes so far as to hypothesise that the material is either neutral or positive.

In respect of the more general principle which I previously talked about saying that it does not really turn on the particular facts that arise in this case, there is also the point that the legislation has already been refused - an application for special leave has already been refused on comparable legislation.  That of course was in the case of Singh, which is before your Honour.  The case of MZAFZ and the case of Singh are very closely related.  Singh does adopt a reasoning process of MZAFZ and that case decided by the Full Court of the Federal Court was denied special leave.

I would also submit that the test that your Honours should be applying, derived from Aala, is whether the applicant in this case was denied the possibility of a successful outcome by not being informed of the certificate - so, to return to my argument which your Honour has said is not strong, not being informed of the certificate in such a way that the applicant was able to make a submission that discretion should be exercised to take regard of the contents of the certificate.  Unless your Honours have any further questions.

KIEFEL CJ:   Thank you.  We do not need to hear from you, Mr Kennett.  There will be a grant of special leave in this matter.  What is your time estimate?

MR KENNETT:   We would think not more than half a day, your Honour.

KIEFEL CJ:   Yes.  Would you agree with that time, Mr Blount?

MR BLOUNT:   Yes, your Honour.

KIEFEL CJ:   Yes, thank you.  Would you please ensure that your instructing solicitors obtain a copy of the timetable which needs to be complied with?

The Court will adjourn to reconstitute.

AT 11.08 AM THE MATTER WAS CONCLUDED