NACL of 2002 v MIMIA

[2003] HCATrans 543

[2003] HCATrans 543

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S1 of 2003

B e t w e e n -

NACL OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 DECEMBER 2003, AT 11.49 AM

Copyright in the High Court of Australia

MR K.G. HORLER, QC:   If your Honours please, I appear for the applicant with my learned friend, MR S.E.J. PRINCE.  (instructed by Stephen Blanks and Associates)

MR S.B. LLOYD:   I appear for the Minister, your Honour.  (instructed by Australian Government Solicitor)

GUMMOW J:   Yes, Mr Horler.  It was adjourned on the previous occasion.

MR HORLER:   It was, indeed, because we had come into it very late.  Your Honour, could I please check and confirm that since the matter was adjourned about a week ago that you have certain documents that we have prepared and filed with the Registry?

GUMMOW J:   Yes.

MR HORLER:   I would like to be sure that you have an amended application for special leave.

GUMMOW J:   Yes.

MR HORLER:   Thank you.  A further outline of submissions.

GUMMOW J:   Yes, filed on 5 December?

MR HORLER:   That sounds about right, your Honour, yes.  All of these would have been filed within the last seven days.

GUMMOW J:   Yes, and an amended draft notice of appeal.

MR HORLER:   Yes, those are the three documents.  Your Honours have those?

GUMMOW J:   Yes, thank you.

MR HORLER:   Your Honour, there is a further piece of paper that I might burden you with, which is a short and simple chronology, coupled with a summary of the findings before the RRT.  I hand up two copies for your Honours entitled “Chronology and Summary of RRT Findings”.  It is three pages.

GUMMOW J:   The applicant’s parents, what was their nationality?  Does that appear?

MR HORLER:   Palestinian, your Honour.

GUMMOW J:   They would have been born before 1948?

MR HORLER:   I assume so, but I want to confirm that.  The answer is, yes, before 1948.

GUMMOW J:   Yes.

MR HORLER:   Your Honours, I would like to take you now please to what we say is an important special leave point which we would urge upon you has not previously been dealt with but which is and will be of continuing importance in this Court.  The statement of our position on that in our submissions is to be found in the recently filed applicant’s outline of submissions.  The pages are not numbered but in fact it is page 3, paragraph 8 and following.  That is the essence and gravamen of the special leave point.

So far as Article 1D is concerned, it is found in a number of the cases to which both sides have made reference, but conveniently in the amended applicant’s outline of submissions, you will find it in small type at the foot of page 2 and I perhaps should take you to it – Article 1D as a postscript to page 2 under paragraph 7 where it has in bold type “The Applicant”.

GUMMOW J:   Yes.  You have a construction point on 1D, have you not?

MR HORLER:   We have.

GUMMOW J:   Could you just tell us shortly what it is, looking at the language there?

MR HORLER:   We say that the Full Federal Court misconstrued the language of 1D and that the applicant here, and below, brought himself within 1D and the protection that Australia was obliged to give to him.  There was an argument about the use of the Latin tag “ipso facto” and that is to be found principally in the judgment of Mr Justice Hill.

GUMMOW J:   What is the decision of Justice Hill?  It is in your materials, is it?

MR HORLER:   Yes, it is somewhere, your Honour, but I can be more succinct I hope on that.  We say that being a person outside certain Middle East countries, including Palestine, Syria and Lebanon – and we were such a person and there is no factual dispute about that – that Article 1D applied to us and we should have had the benefit of it, but that has been refused to us.

HEYDON J:   It has not been refused to you.  You have never asked for it.

MR HORLER:   No, I could put that better, could I not?  We have not been given the benefit of it.  You have the text of 1D set out under paragraph 7 on page 2.  Your Honours, surprisingly, this point has not ‑ ‑ ‑

GUMMOW J:   Does the United Nations High Commissioner’s handbook say anything about this?

MR HORLER:   The construction point or the ‑ ‑ ‑

GUMMOW J:   Yes.

MR HORLER:   I think not, but before I put that dogmatically, I will just check.  Your Honour, in our amended submissions I am reminded that at paragraph 22 and following and, in particular, paragraph 25 where we refer to Professor Goodwin‑Gill’s article and 26 where there is a specific reference we have made to the handbook.  I will read that because it is not long.  Paragraph 26, a more recent note from UNHCR dated 20 October 2002 states, and, parenthetically, apparently contrary to the 1988 handbook considered in WABQ, that:

If a person is outside UNWRA’s area of operations, he or she no longer enjoys the protection or assistance of UNWRA and therefore falls within paragraph 2 of Article 1D, providing of course that Articles 1C, 1E and 1F do not apply.  Such a person is automatically entitled to the benefits of the 1951 Convention and falls within the competence of UNHCR.

That is a specific reference to the handbook, which in part answers your Honour’s question.  I do not think there is any other reference.  If there is, we have not located it.

GUMMOW J:   What does “entitled to the benefits of the 1951 Convention” mean?

MR HORLER:   We get a visa.

GUMMOW J:   That is the question, is it not?  That is where Mr Lloyd locks horns with you, I think.  He will say, “means entitled to such benefits as would otherwise be obtainable under the Convention, if applied”.

MR HORLER:   Yes.  The benefits are in the basket of protection.  I would ask your Honours to consider carefully what we say in paragraphs 8 through to 27, over some three or four pages there.  I shall not read it to you.

GUMMOW J:   Just pardon me a minute, Mr Horler.

MR HORLER:   Yes, of course.

GUMMOW J:   What do you say abut Justice Hill’s judgment which is in the materials?  It is The Minister v WABQ 197 ALR at 53.

MR HORLER:   With respect, we say he was wrong.

GUMMOW J:   You say that is wrong?

MR HORLER:   Which was the passage your Honour was ‑ ‑ ‑

GUMMOW J:   It is the penultimate paragraph on page 53.  It is the ipso facto point which you mentioned.

MR HORLER:   Yes, which I mentioned earlier.  We say and we would argue in due course that his Honour got it wrong.

GUMMOW J:   Thank you.

MR HORLER:   Your Honour, in those three pages in those paragraphs that I have specifically taken you to you will see set out the new and important point which we say entitles us to special leave.  We have a second point and I am just going to chase up the reference.  That is on page 8 at paragraph 39.  Would your Honours be good enough to turn to that.  If your copy has page numbers, it is page 8 – mine does not.

GUMMOW J:   Yes.

MR HORLER:   Your Honour, shortly – and it is set out there so I do not wish to replicate the arguments – we say there was an obligation to supply the applicant with certain material which, in the jargon of this jurisdiction, is called country information.  This was not done.  It was sort of attempted to be done in a synopsis or summary of material but in that synopsis a document concerning his alleged involvement in an organisation called Rakah was not supplied to him, so he was deprived and lost the opportunity to deal with that allegation.  We say there was therefore a denial of natural justice.

GUMMOW J:   Is this point you are now on dealt with in the Full Court?

MR HORLER:   Yes, I believe so.

GUMMOW J:   Could you just find that passage?  My colleague suggests page 71.

MR HORLER:   Paragraph 71?

HEYDON J:   No, page.

MR HORLER:   In the application book at page 71 ‑ ‑ ‑

GUMMOW J:   Paragraph 15 there?

MR HORLER:   Yes, thank you for your assistance.  Now, I anticipate that it will be said that there was a compliance with the section but, in any event, as a fallback position, the Minister was not under any obligation to do so.  We would join issue with that.

Your Honour, there was just one matter that I omitted when I was dealing with the first point that I ought to deal with.  It is at page 2 in our submissions, paragraph 4.  We say the applicant has not previously put the submission relating to Article 1D.  That is true, that point was not raised until we came in it.  It was not put in the proceedings before the Federal Court.  We say, however, that the issue is of such importance that nevertheless the Court would exercise its discretion to permit this important point to be raised, there is no prejudice to the other side and it is of general importance and for cases yet to come in this jurisdiction.  We refer to the well‑known decisions concerning the Court’s discretion:  Eastman, Crampton and Gipp.  That is at page 2, paragraph 4.

I want to take your Honours to page 13 in the book, at about line 5.  This relates to the criticism and challenge to the RRT decision.  We begin with the words:

Following the recent decision of Jaber v MIMA [2001] FCA 1878 (Carr J, 20 December 2001) it is clear that the second paragraph of Article 1D does not mean that an UNRWA registered applicant for whom protection or assistance has ceased for any reason –

that is the language of 1D ‑ ‑ ‑

GUMMOW J:   Anyhow, your point is, Mr Horler, that it might not have been alive in the Federal Court but it was alive in the Tribunal, so it is not an entirely new idea.

MR HORLER:   No, and my client, who has little or no English, more often than not was unrepresented and he should not now be shut out or

prevented from raising an important point.  Unless there is anything else, your Honours, thank you.

GUMMOW J:   Thank you, Mr Horler.  Yes, Mr Lloyd.

MR LLOYD:   In relation to the natural justice point, I would accept that the Full Court did refer to the decision of a previous Full Court in NAAV and that that decision was not correct.  However, the argument in this case was heard after the argument in S157 and although the court book indicates that Mr Smith was counsel for the respondent, in fact, I was counsel for the respondent and was, by November 2002, somewhat lacking in confidence that the privative clause would have effect, and so ran a full argument to the effect that there was not a denial of natural justice, in any event.

GUMMOW J:   Where is the conclusion on the natural justice point?  They did seem to go into it.

MR LLOYD:   There is two things.  One is at page 75 at paragraph 22 and then the second one is at page 76, paragraph 27.  In relation to the new point, I accept, as of course I must, that the Tribunal referred to the UNRWA.  However, so far as I can tell – and my friend has not put to the contrary – the applicant actually never claimed he was a refugee because of Article 1D.  It was the Tribunal who referred to the point.  I only make that point because this Court has said in Crampton, acknowledging that it has obviously the jurisdiction to deal with an entirely new point, that it is an exceptional one and will only be done to cure substantial and grave injustice.  In my submission, in a context where the person has never actually raised the point and put their claims on the basis that they are a refugee, there is no injustice which needs to be cured.

GUMMOW J:   In WABQ, were the other members of the Full Court of the same view as Justice Hill on this construction point?

MR LLOYD:   On the question of ipso facto, yes, although I have to qualify that.  Justice Moore felt that he did not have to decide it.

GUMMOW J:   Yes, what about Justice Tamberlin?

MR LLOYD:   Justice Tamberlin agreed at paragraph 171.  I have the Federal Court Reports version, but it is paragraphs 171 and 172.

GUMMOW J:   Thank you.

MR LLOYD:   I think it is incumbent upon me, or, if it is not, I will do it anyway, to say that I do not say that the construction of Article 1D is utterly beyond question.  After the Full Court in WABQ heard the argument on 30 May but before it handed down its decision on 8 November, the English Court of Appeal dealt with the exact same point and came up with, I would have to accept, an entirely different construction of the provision.  However, there are two reasons why this is not an appropriate vehicle.

The first is that on the English Court of Appeal’s construction this applicant would fail for an entirely separate reason.  If I take your Honour to Article 1D and explain the approach of the English court, which is at page 2 of my friend’s submissions, it says:

This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations –

Now, the English Court of Appeal goes into the travaux and the history of the matter in perhaps as much detail as Justice Hill does, but they come to a different conclusion.

GUMMOW J:   In not as much detail?

MR LLOYD:   No, as much detail.  They also had the assistance of Professor Goodwin‑Gill, who was representing the UNHCR in the matter, and that court’s conclusion was that “who are at present” is referring to people who, in 1951, were, at that point in time, refugees.  To cut a long story short, it does not include anyone born after 1951.  It was time bound, which, of course, the definition of “refugee” itself in the original Convention was also time bound. 

GUMMOW J:   Yes.

MR LLOYD:   So they come to the conclusion that it is a limited and dwindling pool of people who ever fell within it.  The consequence is, if you were not born in 1951, you were never in it, such that the second paragraph would have the effect of, as it were, deeming you to be a refugee, although I should accept that the Court of Appeal did accept that the second paragraph had the construction for which the applicant would contend.

GUMMOW J:   So in the actual case before the Court of Appeal, what were the facts?

MR LLOYD:   The facts were that people were about 20 years old and they dismissed the application.

GUMMOW J:   I see.

MR LLOYD:   In the present case the applicant was born in 1966, but the same result would follow.

GUMMOW J:   Where do we find most clearly their Lordships’ reasoning on the second paragraph of Article 1D?  Granted what you said about the first paragraph, where is their construction of the second?

MR LLOYD:   If your Honour goes to paragraph 22 on page 18, there is a discussion for a couple of pages about the rival constructions and ending at paragraph 27, saying that almost everyone before it had a different construction of the provision and, in fact, the court favoured a view not favoured by any of the parties before it.  There is then a discussion of “at present” for several pages, which is the main point, and they conclude that they can dismiss it on that basis.  There is then at paragraph 44 a discussion of such protection or assistance.  The point – and it does not really affect the current matter – there is that their Lordships conclude that another reason why it is different is because ‑ ‑ ‑

GUMMOW J:   Their construction of the second paragraph is really driven by their temporal view of the first, I think.

MR LLOYD:   That is so, your Honour.  That is dealt with at paragraphs 49 and 50.  Another reason why this is an inappropriate vehicle is dealt with in paragraph 51 of their Lordships’ reasons.

GUMMOW J:   Just a minute, paragraph 49.

MR LLOYD:   Paragraph 49 is the ipso facto reasoning.

GUMMOW J:   Yes.  What was the other passage?

MR LLOYD:   The last point is paragraph 51.  In the bundle provided by my solicitor to the Court, I included the decision of this Court in Thiyagarajah 199 CLR 321. The relevant discussion is perhaps at paragraphs 14 to 16 in which, admittedly in dicta, nonetheless four Judges of this Court accept that – the last sentence is perhaps the most critical in paragraph 16:

Even were the respondent a refugee, he was not a person to whom Australia had protection obligations if art 33 applied.

That is the result of the Federal Court decision of Thiyagarajah to the effect that it is not every refugee who is entitled to protection obligations, but only refugees who cannot be returned consistently with Article 33.  Article 33, in effect, prevents return of someone to a country where they have a well‑founded fear of persecution.

In the present case there was a finding that this applicant did not have a well‑founded fear of persecution in Syria.  As a consequence, even if the applicant’s argument is entirely correct, you never get to the Article 1D point because even if he is a refugee, he is not owed a protection obligation on the findings of the Tribunal.  So, for those reasons, in my submission, this is not an appropriate case to deal with the question of Article 1D.

GUMMOW J:   Thank you.  Yes, Mr Horler. 

MR HORLER:   Nothing in reply, your Honour. 

GUMMOW J:   Thank you.  We will take a short adjournment. 

AT 12.14 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.26 PM:

GUMMOW J:   The applicant raises what are put forward as two special leave points.  The first concerns a denial of procedural fairness by the Refugee Review Tribunal.  As to that we see no prospects of success in a challenge to the Full Court’s rejection of the point in paragraphs 15 to 27 of the Full Court’s reasons. 

The second point concerns the construction of Article 1D of the Refugee Convention as introduced into Australian municipal law through the provisions of the Migration Act.  The construction given to that Article by Justice Hill and Justice Tamberlin in The Minister v WABQ (2002) 197 ALR 35 at 53, and at 78 to 79 respectively, would be fatal to the case the applicant seeks to make. So also would be the quite different, but temporally based construction given to the provision by the English Court of Appeal in El‑Ali v Secretary of State for the Home Department [2002] EWCA Civ 1103. In particular, the construction advanced by the applicant before us of the second paragraph of the Article would be controlled by the temporal limitation in the first paragraph and, therefore, not avail him.

Accordingly, this application would not provide an appropriate occasion to resolve the conflict between the Federal Court and the English authorities.

Special leave is refused with costs.

AT 12.28 PM THE MATTER WAS CONCLUDED