Minister for Immigration and Citizenship v SZGUR & Anor

[2010] HCATrans 202

[2010] HCATrans 202

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S81 of 2010

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

SZGUR

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 JULY 2010, AT 2.27 PM

Copyright in the High Court of Australia

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

MR L.J. KARP:   May it please your Honours, I appear for the first respondent.  (instructed by Dobbie and Devine Immigration Lawyers Pty Ltd)

GUMMOW J:   There is a submitting appearance of the second respondent, the Refugee Review Tribunal.  We would be assisted to hear first from you, Mr Karp.

MR KARP:   Thank you, your Honours.  Your Honours, in my submission, there are two reasons why special leave should be refused.  The first is that there is no issue of public importance.  I make out that point by saying, firstly, that the authorities upon which the Minister relies to argue that there was a conflict of authority in the Federal Court are distinguishable, that is that WAGJ, cited by the Minister, was a case where there was no request made upon the Tribunal to exercise its power under section 427(1)(d). 

Secondly, the issues raised by the case involve unusual circumstances and that is that a request was made to the Tribunal to arrange its own psychiatric assessment because in the agent’s letter it was said that the applicant could not remember to give a letter to his own psychiatrist and those are unusual circumstances, and in my submission, turn upon their own facts.  The applicant in this case does not submit that a large number of cases depend upon it, at least as far as I know.  Thirdly, on this point there is little by way of principle that can be garnered from inferences to be drawn from specific facts. 

Your Honours, the second reason why special leave should be refused is, in my submission, that there are insufficient prospects of success to warrant a grant.  I make out that point as follows.  Firstly, if the letter written by the Tribunal was pursuant to section 424A of the Migration Act, as his Honour Justice Rares stated, the requirement that the Tribunal is to invite the applicant to comment on information must, in my submission, by implication require consideration of the comment and anything which flows from it.  Secondly, if the request was, in reality, pursuant to section 424(1), the requirement that the Tribunal have regard to information that it obtains must, in my submission, by implication extend to anything which flows from the information obtained. 

In both these circumstances, the Minister’s construction would mean that the Tribunal would consider part of a response to a letter but stop that consideration as soon as that response extended beyond comment upon information or the provision of information.  Such an approach, in my respectful submission, is condemned by its artificiality.  The first respondent has raised in submissions that section 423 permits the applicant to give written arguments relating to the issues arising in the review.  If the response to the Tribunal’s letter, given by the migration agent, Mr Oli, was a written argument, and I would submit that it is, that argument would, at least by implication, have to be considered and the argument would include, in my submission, any request which stems from the reasons given by the agent that the applicant’s credit was not to be accepted. 

Next, in my submission, to the extent that the Minister argues in paragraph 23 at application book 133 of his submissions, paragraph 3(b) of his supplementary submissions, that the Tribunal must have regard to something but then not consider it, I would submit that that is a distinction without a difference.

Finally, your Honours, in the first respondent’s supplementary argument, the recent judgment of this Court has, in my submission, rendered the Minister’s application otiose.  That is because even if the Minister is correct in what he says about the effect of sections 424A and 424, firstly, natural justice requires all information and submissions before the Tribunal to be considered ‑ ‑ ‑

GUMMOW J:   I was going to ask you about that.  Is it your position that if special leave were granted, you would be putting on a notice of contention on this natural justice point?

MR KARP:   It is, your Honour, yes. 

GUMMOW J:   Yes, go on.

MR KARP:   Secondly, that there is nothing in Part 4, Division 7 of the Act that deals with whether or not the Tribunal must consider requests for the exercise of a discretionary power, therefore, the question of whether the Tribunal must consider is not dealt with.  It goes to the question of whether the applicant for a visa is heard and, in my submission, the natural justice would require that all information and submissions and, indeed, requests made for the applicant should be considered.  Unless I can further assist your Honours, those are my submissions.

GUMMOW J:   Yes, thank you, Mr Karp.  Mr Lloyd, I notice at page 143 there is a reference to the carriage of costs.

MR LLOYD:   Yes, your Honour.

GUMMOW J:   Have you got instructions that if leave were granted, the Minister would undertake to the Court to pay the costs of the respondent in this Court and would not seek to disturb the costs orders below?

MR LLOYD:   Yes, I think that is what is said in those submissions, that is so.

GUMMOW J:   We do not need to hear you any further, Mr Lloyd.  There will be a grant of special leave in this matter which will be, what, a half day case, I would think?  Does that seem right, Mr Karp?

MR KARP:   A half day would be suitable, yes, your Honour.

GUMMOW J:   Yes, I think so.  Yes, we thank counsel for their assistance.  The Court will adjourn to 10.15 am on Tuesday, 3 August 2010 in Canberra.

AT 2.35 PM THE MATTER WAS CONCLUDED