Minister for Immigration and Citizenship v NBKB & Anor

[2009] HCATrans 289

[2009] HCATrans 289

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S51 of 2009

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

NBKB

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 3 NOVEMBER 2009, AT 11.47 AM

Copyright in the High Court of Australia

MR S.B. LLOYD, SC:   May it please the Court, I appear with my learned friend, MR J.A.C. POTTS, for the applicant.  (instructed by Clayton Utz)

MR I.G.A. ARCHIBALD:   May it please the Court, I appear for the first respondent (instructed by Michaela Byers)

FRENCH CJ:   Yes, Mr Lloyd.

MR LLOYD:   Justice McKerracher’s judgment was based upon two jurisdictional errors; one a failure to comply with section 425(1) and the second a failure to correctly apply section 91R(3) of the Act.  In relation to the second of those matters this Court recently allowed an appeal from the decision of the Full Federal Court in SZJGV.  As a consequence, Justice McKerracher’s application of that judgment is in error.  So that basis of his Honour’s decision we say just goes, which then leaves us with what we accept we have to do; we have to establish that there is an error or at least a special leave question and reasonable arguable error in relation to the section 425 issue.  That issue is succinctly explained by the learned federal magistrate on page 46 of the court book in paragraph 59:

What is in issue in this case is whether on remittal a Tribunal is obliged by s 425 of the Act to raise with an applicant during a second Tribunal hearing issues that were canvassed at the first hearing conducted by a different member which are of concern to the second Tribunal member.

FRENCH CJ:   This is not a reliance on findings by the first Tribunal?

MR LLOYD:   No.

FRENCH CJ:   Nor is it a complaint about reliance upon evidence before the first Tribunal, although there is no problem in principle with that, subject to natural justice?

MR LLOYD:   The issue in a nutshell is – I will go back a step.  This Court in SZBEL said an applicant is entitled to assume that the issues that arise are the matters dispositive in the delegate’s decision unless the Tribunal raises new issues.  It then said that could be done in any number of ways.  What we say is, it could be done by the first Tribunal saying at the first hearing, “Well, you are a liar” or “This whole bit of your story is not true” or “I do not believe any of those things”, and even though that Tribunal’s decision is ultimately set aside and remitted, when it comes back to the Tribunal for a second hearing the Tribunal does not have to raise the same issue again.  We say that the review applicant is not entitled to assume that those matters are no longer on issue.

FRENCH CJ:   You mean obliged to assume?

MR LLOYD:   That the applicant is not entitled to assume that it is back to the delegate’s position.

FRENCH CJ:   I am sorry.  I see what you mean.

MR LLOYD:   We say, in effect, to apply a Bhardwaj type analysis, what Bhardwaj said is that one looks at what the legal consequences of the events were and if the legal consequences of the events are that the decision has no force so the Tribunal is not functus, it still has power and can continue to do those things.  It does not say, and in fact it rejected the idea, that all steps done leading to it are nullities to be put aside for all purposes.  There are two decisions, which unfortunately Justice McKerracher’s attention was not drawn to, of the Federal Court that are directly inconsistent, we say, with that.

One is a decision of Justice Flick called SZDFZ (2008) 168 FCR 1,which is in the bundle prepared. The relevant passage is in paragraph 20. In that case it went the other way, although his Honour’s analysis I think fairly indicates that the issue can go both ways. In that case the first Tribunal had said that it accepted as true certain things that the applicant had said at the first hearing. Justice Flick then said, well, when it came back on remittal, the applicant was then entitled to assume that what had been said by the Tribunal had taken that, as it were, off the table unless the Tribunal put it back on the table again, but in paragraph 20 his Honour makes it clear that the proposition works both ways.

All of this is just to say that a person can be put on notice that something is in issue even by what a previous Tribunal member said and, really, all of paragraph 20, we say, supports that proposition.  That idea was applied by Federal Magistrate Emmett in a case called SZFPA and then on appeal was upheld by Justice Stone in [2008] FCA 1220. The way the learned federal magistrate dealt with it is summarised in paragraph 11 of Justice Stone’s judgment which refers to SZDFZ.

BELL J:   I am sorry.  Which one are we in at the moment?

MR LLOYD:   I am sorry.  We are now in SZFPA, Justice Stone’s judgment.

BELL J:   Yes.  At which paragraph?

MR LLOYD:   Paragraph 11.  So there is a reference there to Justice Flick’s judgment and to the fact that the learned federal magistrate applied that in the way I have suggested it should be applied, which is to say that there the first Tribunal had clearly raised credibility issues and made adverse findings that put the person on notice that their credibility was at stake.  Her Honour said at paragraph 29 that she accepted that the federal magistrate “was correct for the reasons her Honour gave”.

I should also perhaps draw the Court’s attention to paragraph 20, where there is a reference to a further decision, SBRF, where a similar point is made.  We say that there was this line of authority and that analysis was the exact analysis which the learned federal magistrate applied in this case.  If I just take the Court back to the application book it can be seen, for example, at paragraph 63 her Honour says:

SZBEL is not authority for the proposition that a reconstituted Tribunal must in all cases take the applicant through evidence given to the delegate (or to the Tribunal as originally constituted) and tell the applicant what it accepts and what remains of concern.

If I stop there and say that that, in my submission, is unambiguously correct.  SZBEL simply did not have to look at that at all, but in Justice McKerracher’s reasons he cast a doubt upon it.  He specifically notes that proposition being made by the magistrate and doubts it.  Then over the page on page 48 at about line 10 there is a reference:

The fact that such matters were put to her at the first Tribunal hearing gave her the opportunity ‑

and that is what we say section 425 is about, the hearing –

to address those issues as issues arising in relation to the review of the delegate’s decision, both before the Tribunal as originally constituted and as reconstituted . . . While the first Tribunal decision was invalid, the concerns expressed therein about the applicant’s evidence about what occurred in China could be said to have sufficiently informed the applicant that everything she said in support of her application for review was a “live issue” ‑

In paragraph 65:

the Tribunal told the applicant that the evidence she gave at the first hearing “is evidence that I may consider as evidence before me” and that “only his conclusions don’t exist any more” because of the successful judicial review application . . . In those circumstances, where issues had been raised with the applicant at the first hearing, it could not be said that the applicant was unaware of their potential relevance to the Tribunal decision.

Then paragraph 67, I will not read it out, but the whole of that paragraph we endorse as the correct approach which is ultimately the approach taken in the other two Federal Court decisions.  There is a reference in paragraph 68 to – there is actually a typographical error; it should be SZEPZ – a Full Court decision.  In that Full Court decision it was a case in which an invitation to comment on adverse material had been sent out by the first Tribunal under section 424A.  The decision was set aside for some other reason.  It was remitted.

The second Tribunal had regard to the same information that was the subject of the section 424A notice and the applicant said to the Full Court, “Well, you have to give me another section 424A notice” and the Full Court said, “No, the obligation is on the Tribunal.  Once the Tribunal has sent it out, you have had your opportunity to comment, it does not have to send it again”.

BELL J:   If you accept, Mr Lloyd, that an applicant for review can have his or her attention drawn to the issues in any of a number of ways, does it come down in this case to a factual consideration?  As I understand it, relevant to the approach taken by his Honour was that the evidence given by the applicant for review had taken place some little more than two years before the second hearing before the Tribunal.  At the second hearing, apart from being informed that among the material that the Tribunal had before it was the evidence given more than two years earlier, there was no other reference to the issues that that evidence gave rise to bearing on the applicant’s credibility among other things.  Is that a fair way of characterising it?

MR LLOYD:   That is so, although I do not think his Honour Justice McKerracher said that.  That was the circumstances in which this case arose, but his Honour is saying, in effect, if it is remitted you, the new Tribunal, need to raise issues again.  That was the case that was put by the applicant and that is what his Honour accepted.  What we are saying is that you do not have to put it again and, really, it is a situation where it is not like – it is put by the respondent that two years is a long time, how can you remember everything that happened?  

First of all, you have a copy of the tapes, so that is one way you can remember.  Secondly, you have a copy of the first Tribunal’s reasons for decision which is all you have from the delegate anyway, the Tribunal’s reasons for decision, and possibly a tape of a hearing before the delegate.  In those circumstances you have the same kind of material, if not better material, than you would have in the case of a delegate, so you are on notice.  In my submission, his Honour is not saying there was not sufficient notice ‑ ‑ ‑

BELL J:   Can you take me to exactly where you say his Honour erred?

MR LLOYD:   Certainly.  His Honour’s reasons are brief, but if I ask the Court to go to page 72 there is then in paragraph 22 that summary of what the learned magistrate said about SZBEL.

FRENCH CJ:   He starts from a general proposition in paragraph 21, does he not, of the obligation on the Tribunal under section 425 to notify the applicant of determinative issues?

MR LLOYD:   Yes, that is so, your Honour.

FRENCH CJ:   And you do not cavil with that?

MR LLOYD:   No, that is true.  We say the Tribunal is the Tribunal as a whole however constituted, first or second.  Then his Honour summarised the matter before the federal magistrate and over the page on to the Minister’s submissions at paragraph 27 then summarises again the substance of section 425 and then states in paragraph 29 that Justice Besanko expressed the test for compliance with section 425(1) in a particular way.  I could cavil with that description of it because I think Justice Besanko was not really saying – Justice Besanko cannot on any view be understood as saying that what is required is for the Tribunal on each occasion to re‑raise issues, because Justice Besanko’s decision was actually contrary to that. 

He gives an example, in paragraph 112 of his Honour’s judgment, that where the Tribunal had raised it sufficiently the first time there would not even have been an obligation for a second hearing at all.  What we say about SZHKA is that Justice Gray and Justice Gyles were both of the view that there is a general requirement on remittal that there be a second hearing.  My client does not dispute that there is an obligation to have a second hearing.  We say that we have done that.  Then we go to paragraph 31 where his Honour says:

It is clear from the transcript of the second Tribunal hearing, that the Tribunal Member discussed –

a couple of things.  However, the second Tribunal did not then discuss these other things.  Then he says –

However, the Tribunal did not question the appellant on any of these issues at the second Tribunal hearing nor did it indicate that these aspects of the appellant’s account were live issues in relation to the decision under review.  As a result, in my view, the appellant did not have a realistic opportunity to provide further evidence ‑ ‑ ‑

BELL J:   That is in the context of an acceptance, as I understand it, in part, of the observations that Justice Gray made that are extracted in paragraph 30 of the reasons concerning the function of the Tribunal to provide the applicant with the opportunity to satisfy the Tribunal as to specific reservations about the case.  So that when one has the matter sent back to a differently constituted Tribunal to review the delegate’s decision, that process being, as it were, ongoing up to the date that the second Tribunal reviews the matter, as I understand the approach that his Honour is taking, it is that there is an obligation to provide an adequate opportunity to identify issues such that the applicant understands the reservations that the decision‑maker may entertain.  Is that not the essence of it?

MR LLOYD:   Of Justice Gray’s view?

BELL J:   Yes.

MR LLOYD:   Justice Gray was concerned at a case where the second Tribunal does not have a hearing at all.

BELL J:   I understand that.

MR LLOYD:   His Honour said it is important that a person have an opportunity to put their views about the matters and issues to the Tribunal.  We entirely accept that, but you have that opportunity by having a second hearing.  If the second Tribunal had made its decision on the basis of issues that had never been raised before, we would not be here and there would be no dispute.  But his Honour Justice Gray was not looking at a position, or not, we say, commenting on a situation and not saying that a second Tribunal has an obligation to re‑agitate issues that are on notice. 

There is a second bit of his Honour’s reasons where, in my submission, it is inconsistent with that view.  First of all, his Honour in the alternative adopted Justice Besanko’s approach.  So to that extent that would be inconsistent.  But separately, at paragraph 22 in SZHKA his Honour is dealing with what the Act says.  What the Act says, when a Tribunal is reconstituted, is that the new Tribunal member is to finish the review.  His Honour is saying, well, his views are not inconsistent with that.  At the end of that his Honour says, “Having regard to the record” because also the new Tribunal member is entitled to have regard to the record ‑ ‑ ‑

FRENCH CJ:   You are not really finishing a review if the first one is being set aside or quashed.

MR LLOYD:   The first decision has been set aside, but we say everything that the first Tribunal did remains and still is capable of having significance, and so if the first Tribunal has said, “I think you are a complete liar”, we say the second Tribunal does not have to say that again, “You are on notice”.  What his Honour says here is:

Having regard to the record of what a previous Tribunal member has done is a sensible step; and may assist in eliminating repetition –

So his Honour is not taking an approach which is saying, there has to be, as it were, needless repetition.  He is saying, “What you are entitled to do under 425 is to go before the person who is going to make the decision and tell them, give your evidence to that person, and make your submission to that person”.  That is fine and this person had that right.  That does not mean that that person has to say, “Well, I have the same concerns the previous Tribunal member had”.

BELL J:   I do not know that Justice McKerracher was suggesting that one needed endless duplication so much as a view that it was necessary for the second Tribunal to say, “I have before me the evidence that you gave two and a bit years ago before the first Tribunal.  Issues relevant to the determination include the evidence that you gave about your travel to Australia for purely business purposes.  Is there anything more you want to put on that”, or something of that character, as distinct from going through the whole of the material again.

MR LLOYD:   I understand what your Honour puts to me in terms of, it could easily have been done, but there are many instances.  In the last two years there has been something like 400 remitted decisions, so they are all finding their way through the system.

FRENCH CJ:   We are not talking about some mindless process of going through every question that the previous Tribunal has put.  Looking to the issue whether section 425 and the requirement it imposes upon this decision‑maker requires this decision‑maker, in accordance with authority, to identify what for him or her are the dispositive issues.  It may be that some of the issues raised before the previous Tribunal are not dispositive and need not be mentioned from the point of view of this particular decision‑maker, but I do not quite understand what the difficulty is and why it is inconsistent with the general obligation under 425 for the second decision‑maker to identify what for him or her are dispositive issues.  Some of the issues, of course, referred to page 71 of the application book might be thought be questions about processes of court, which really need not be identified as issues, but were are putting to that one side, we are just looking at the question of principle, are we not?

MR LLOYD:   In my submission, if your Honour looks at paragraph 32 where he quotes from Justices Gyles’ obiter remarks in SZHKA and

emphasises the idea that mandatory statutory obligations have to be carried out again, his Honour is saying that the Tribunal has got to do it again.  That is the emphasis and that is then emphasised in the next page.

FRENCH CJ:   In doing it again, it can bring in all the evidence that was taken before provided the person has an opportunity to further comment on it, I imagine?

MR LLOYD:   No doubt that is true, but the question is, in cases like the case of Justice Stone that I have already taken the Court to, there the first Tribunal member said, “I do not believe anything you say”, and the question was, “Well, the second Tribunal member did not say that, and did the second Tribunal member have to say it again”, and the Court in that case said, “No, because the first Tribunal member had raised the issue.  You do not have to say it again”.  What Justice McKerracher says is inconsistent with that by saying, well, you do you have to say it again, and so we say there are inconsistent Federal Court authorities on the point which are not really just distinguishable in the facts.  At least, his Honour does not just distinguish it on the facts.  His Honour makes a broad statement.  I notice the time.

FRENCH CJ:   Yes, thank you, Mr Lloyd.  We will not to hear from you, Mr Archibald.

The decision of the Federal Court in this case concerned the duty of the Refugee Review Tribunal under section 425 of the Migration Act on a rehearing to identify for the applicant dispositive issues, including issues which may have been canvassed at the first hearing.  Its approach to section 425 does not appear in the circumstances of this case to disclose any error warranting the grant of special leave.  Special leave will be refused with costs.

AT 12.12 PM THE MATTER WAS CONCLUDED