MZWXM v MIMA & Anor

[2008] HCATrans 215

[2008] HCATrans 215

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M129 of 2006

B e t w e e n -

MZWXM AND MZWXN

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 23 MAY 2008, AT 3.01 PM 

Copyright in the High Court of Australia

MR D.I. STAR:   May it please the Court, I appear on behalf of the applicant.  (instructed by Arnold Bloch Leibler)

MR C.J. HORAN:   If the Court pleases, I appear for the first respondent.  (instructed by Clayton Utz)

HEYDON J:   Yes, Mr Star.

MR STAR: Your Honours, there is currently still real uncertainty as to the operation and application of section 424A of the Migration Act.  That is the provision requiring the Tribunal to give certain information to an applicant.  There are two substantive important points unresolved from the interaction of the joint judgment of this Court in SZBYR and the Full Court of the Federal Court in SZEEU. One, there is a question about what is information within the meaning of section 424A, two, there is a question about the role of the Tribunal’s reasons in assessing whether information:

would be the reason, or a part of the reason, for affirming the decision that is under review –

The question about information is this.  If the Tribunal says it does not believe an applicant because of the fact that one thing was said in a prior statement and another at the Tribunal’s hearing or if what is claimed at the Tribunal’s hearing is true, it would have been a claim in a prior statement.  Can that be:

information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review –

within the meaning of section 424A(1)(a)? The question about the role of the Tribunal’s reasons is this. As a result of the joint judgment in SZBYR there is a new unresolved question as to how far a court should or can enter upon a consideration of the Tribunal’s actual reasons in determining in a particular case whether or not a section 424A obligation has arisen. Both these important points arise from the Tribunal’s decision to affirm the decision to refuse protection visas to the applicants.

In the findings and reasons part of the Tribunal’s reasons it expressly disbelieved two claims because of the fact that the claims were raised for the first time in the Tribunal’s hearing.  These were claims, first, of an attempt of a bus driver to kill the husband by colliding with his vehicle, secondly, threats of harm to the husband by persons seeking to dissuade him from giving evidence in court proceedings arising from the bus collision.

It is common ground that the Tribunal did not comply with section 424A in relation to these matters. The controversy is whether it should have. If I go back to the information point, I submit it is still a live question as to what constitutes information even post‑SZBYR.  My submission to the Court is that information is the knowledge imparted to the Tribunal of a prior statement in a particular form.  I use those words deliberately, those being the words used by his Honour Justice Allsop as a member of the Full Court in SZEEU.

Applied to this particular case the information is a typed written statement dated 13 August 2003 signed by the applicant that was provided to the Department in support of an application for a protection visa in certain terms that purported to be the full account of all his claims for refugee status.  This is something different from the Tribunal’s subjective appraisals or thought processes about the information.  To that extent, my submission is consistent with one of the propositions in SZBYR that the Tribunal does not have to give a notice under section 424A in relation to every matter that the Tribunal might think relevant to its decision.

The joint judgment in SZBYR was careful to note that the decisions in Al Shamry and in SZEEU were – there was an assumption about the correctness of those decisions and, indeed, the Court noted that it was not necessary in SZBYR to express a view about the correctness of that assumption and nowhere in SZBYR does the joint judgment expressly overrule anything that is said in SZEEU. The result is that today in the courts, the lower courts, there is uncertainty about the interaction of section 424A(1) with the joint judgment of SZBYR with the pre‑existing Full Court Federal Court authority of SZEEU.

It is apparent from comments of at least five Federal Court judges – and I am referring to the passages which have been extracted in application book pages 67 to 68 in paragraphs 24 to 25 of the applicant’s summary of argument.  There is reference to decisions of the Federal Court post‑SZBYR in which Federal Court judges have identified tension and unresolved questions between the joint judgment in SZBYR and previous Federal Court authority, including SZEEU.  To use the words of Justice Allsop, there is “some lack of clarity at the moment”.  To use the words of Justice Branson, “the full import of that decision [in SZBYR] awaits clarification”.  To use the words of Justices Emmett, Weinberg and Lander:

It is plain that in SZBYR the High Court did not expressly overrule SZEEU.  However, there is a real question as to whether the reasoning set out in the last few lines of [18] of the majority judgment, has the effect of impliedly overruling at least those aspects of the decision that were not the subject of the parties’ assumption in SZBYR.  There are arguments both ways on that point.

I turn for the moment to the second special leave point I have identified, being the reasons point.  If there be information, I submit that there is still unresolved tension about whether or not that information would be the reason or part of the reason for affirming the decision that is under review.  In the present case, reference to the applicant’s failure to raise what has been termed in the applicant’s submissions “the bus collision claim” and “the court claim” until the Tribunal’s hearing formed part of the “FINDINGS AND REASONS” section of the Tribunal’s reasons.

Further, I submit, taking account of the usual caveat of Wu Shan Liang, to read the Tribunal’s reasons fully and fairly, that on a full and fair reading the Tribunal attached great weight to these matters in this particular case.  Perhaps pregnant in this submission is the uncertainty as to what SZBYR stands for in relation to the Tribunal’s actual reasons.  Does SZBYR stand for the proposition that it is impermissible to have reference to the Tribunal’s actual reasons in determining the applicability of section 424A.

Included in the bundle of authorities provided to the Court was a recent decision of Justice Heerey of 12 March this year, MZXBQ and in that decision his Honour effectively decides that post‑SZBYR the Tribunal’s actual reasons are wholly irrelevant in every case to determining whether a section 424A obligation arises. In my submission, it is a strange and erroneous result that the Tribunal’s reasons will always be wholly irrelevant to a section 424A obligation. This is a real issue that needs to be ventilated and I note that his Honour’s judgment is the subject of a separate special leave application, being M28 of 2008, but that issue arises here, too.

Your Honours, there are three arguments as to why special leave should be granted. One, uncertainty in the law at the level of the Federal Court regarding section 424A, including post‑SZBYR; two, the interests of justice in the particular case; three, the proposed questions are of public importance, widespread relevance and continuing significance and that is so even with the June 2007 amendments to section 424A. I have dealt already with uncertainty in the law regarding section 424A and the interaction with SZBYR and SZEEU. 

The only further matter I want to say on that is this.  If leave is granted, it will not be necessary to make an application to reopen SZBYR.  The judgment in SZBYR can stand for the basis upon which all seven judges agreed, namely, it was futile and the discretion should apply not to remit and whilst it will be necessary to look at some of the reasoning in SZBYR, the decision can stand. 

I turned, your Honours, to the interests of justice in the particular case. If there was a breach of section 424A in this case, it was not a mere technicality. Note that the Tribunal did not raise with the husband orally at the hearing that the claim about the bus collision was not to be believed because it was raised for the first time in the Tribunal’s hearing. Note that the Tribunal did not raise with the husband orally at the hearing that the claim that persons threatened him in the court precincts not to give evidence was not to be believed because it was raised for the first time in the Tribunal’s hearing.

I have addressed your Honours already that these matters were material to the Tribunal’s actual decision. It formed part of the “REASONS AND FINDINGS” sections. I submit to your Honours that an injustice has occurred by the breach of section 424A in this particular case. I cannot resist quoting to your Honours the famous passage of Justice Megarry in John v Rees:

As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

My reliance upon this passage is not assertion or optimism for this reason.  Your Honours will be aware that there is a new proceeding issued in the original jurisdiction of this Court by these same applicants relying upon the same underlying complaint but in the context of a section 414 and 425 proceeding.  The material filed includes the transcript of the Tribunal hearing which the applicants contend makes good the proposition that these matters were never raised with the applicants.

There is an affidavit from the husband explaining why it is that the claims were made for the first time at the Tribunal’s hearing and the applicants contend, on the basis of this affidavit, that the reason is it was the fault of the then migration agent.  Indeed, the body of evidence filed in the other proceeding includes a decision of the Migration Agents Registration Authority deciding, vis-à-vis other clients, that this particular migration agent is not a person of integrity and is otherwise not a fit and proper person to give immigration assistance and that he should be barred from being registered as a migration agent for the maximum period of five years.

The short point from all this, your Honours, is that if a section 424A notice had have been given, there was something to say. There was something to say that it was the fault of the migration agent, et cetera. Now, whether that would have been believed by the Tribunal is another matter, but there was something substantial to say had the 424A notice been given.

Your Honours, I turn to the last special leave matter that these are questions of public importance, widespread relevance and continuing significance. It is an obvious point but it ought to be stated so it is not forgotten that section 424A is a provision in a federal law that is often applied and, indeed, it even has an analogue in the Migration Act itself, being section 359A in relation to MRT matters. The amendments in June 2007 should not adversely affect the granting of special leave. It is not a repealing. They are amendments. The reality is there are likely to be many other cases regarding section 424A and 359A pending or on their way to the High Court. I have already referred to the special leave from Justice Heerey’s decision. The amendments do not affect the body of cases, such as there is, prior to the June 2007 amendments.

I provided to my learned friend yesterday extracts from the Migration Review Tribunal and the RRT’s annual report which showed there were 3,102 RRT decisions for the year ended 30 June 2007. For the same time period there was over 6,000 MRT decisions. Of course, I cannot inform your Honours as to what number of those raised 424A or 359A points, but it is not an unreasonable assumption to make that there is still a large body of section 424A points in the system pre‑amended. But a grant of special leave in this case will also have utility in relation to cases post the amendments to section 424A.

It is likely that post‑424A cases we will seek to rely upon SZBYR and to the extent that I have demonstrated some unresolved tension concerning SZBYR and SZEEU and 424A, that is likely to continue post the amendments. The amendments do not touch upon the relevant terms of section 424A(1). The words which I have concentrated upon for my special leave points are information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review. Those words remain unchanged pre and post the amendments to section 424A.

What the respondents rely upon is subparagraph (3)(ba) which is an amendment which seems to attempt to deal with the Al Shamry point, but that is not dealing with what is information which is what the main point of the proposed appeal is and section 424A(3)(ba) deals with what may need to be raised with an applicant but it is not dealing with what is information. So there is still left to be determined whether an oral statement to the department, for instance, whether or not that is information.

Section 424A(3)(ba) says that is not excluded from a 424A notice but it does not deal with the issue as to whether or not that is information which is the same sort of point which is sought to be raised in the proposed appeal. Your Honours, they are the matters relied upon by the applicants.

HEYDON J:   Thank you, Mr Star.  We need not trouble you, Mr Horan.

We are indebted to Mr Star for the efforts he has put into developing the thoughtful arguments he advanced on behalf of the applicants. However, even if there were issues of construction of section 424A of the Migration Act 1958 (Cth) which remain open after SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, resolution of them in favour of the applicants would not be decisive of the appeal if leave were granted because the two items of information to which those issues relate were correctly said by the Tribunal not to be Convention related. That conclusion was reached on the assumption, contrary to the primary position of the Tribunal, that the applicants’ reasons were to be accepted.

Accordingly, the present application is not an appropriate vehicle in which to consider Mr Star’s arguments, and the application must be dismissed with costs.

AT 3.21 PM THE MATTER WAS CONCLUDED