Parvin v Minister for Immigration and Border Protection & Anor

[2019] HCATrans 231

[2019] HCATrans 231

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S190 of 2019

B e t w e e n -

NASREEN PARVIN

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 2019, AT 11.56 AM

Copyright in the High Court of Australia

MR L.J. KARP:   May it please your Honours, I appear with MS T. BAW for the applicant.  (instructed by Mark Tarrant Lawyers Pty Ltd)

MR P.M. KNOWLES:   May it please the Court, I appear with my learned friend, MR J.A. BREZNIAK for the first respondent.  (instructed by DLA Piper Australia)

KEANE J:   Yes, Mr Karp.

MR KARP:   Thank you, your Honour.  Your Honours, at its heart, this is a natural justice case.  There are three issues concerning the special leave, in our submission.  They are, firstly, how is the term “particulars of information” within the meaning of section 359A of the Migration Act to be construed.  Is it to be construed as having the function of ensuring that the applicant was apprised of sufficient detail of information so that the investigation could be made and steps taken to meet the case against her, as per Justice Allsop, as his Honour then was, in Paul at paragraph 104?  Alternatively, is it enough to draw attention to the overall issue on the basis that the details are “subsumed” into that issue, as the Full Court held at paragraph 61 at application book 79?

The second issue is to what extent should the Tribunal have complied with section 359A, consistently with its duty of confidentiality under 375A?  Those are the issues raised by ground 1 of the proposed grounds of appeal.  In our submission the question of the interaction of 375A and 359A is a question of public importance, given that by section 359A the applicant’s participation in the review process is restricted or circumscribed - I refer to SZMTA in this Court at paragraphs 29 and 30 - and also the question of the content of procedural fairness contained in section 359A and, indeed, 424A for refugee matters is one of public importance and it goes to the content of statutory natural justice.  That is especially so now that there are conflicting views at the Full Federal Court level. 

In our submission, this case is a suitable vehicle for testing those questions because, firstly, there is a clear difference in approaches between the different Full Courts in Paul and the current case to the issue of what is required to be disclosed pursuant to 359A.  Secondly, there is no doubt that the information not disclosed was relevant to the Tribunal decision.  That was accepted by the Full Court at paragraph 52 at application book 77.  In those circumstances the question of what should have been disclosed, consistently with the Tribunal’s duty pursuant to 375A and 359A, clearly arises and, lastly, the Tribunal itself needs to know what degree of disclosure is required pursuant to 359A and 424A. 

Now, before I outline the applicant’s argument on ground 1, I propose to divert to the third issue, which we say is deserving of special leave, which is encompassed in ground 2 of the proposed notice of appeal, and that is whether it is sufficient, as the Full Court held, for the Tribunal in this case to have simply told the applicant that it had information from confidential sources. 

GORDON J:   Did it not go a bit further than that, though?  Did the information not say we have information from a number of different sources with identified dates and particular facts? 

MR KARP:   The facts disclosed, your Honour, were that ‑ ‑ ‑ 

GORDON J:   It is set out on 87 - that is where I found it - at paragraph 11. 

MR KARP:   Yes, what was disclosed was that there were a number of different sources.  There were dates, and the applicant and her sponsor had not lived together in a spousal relationship at any time.  Now, what was disclosed in the Tribunal decision - and that can be found at page 20 at paragraphs 99 and 100 was that the couple lived together in a particular address and have never lived separately. 

GORDON J:   That was the other ‑ ‑ ‑ 

MR KARP:   The other couple, yes.

KEANE J:   It is an aspect, if you like – it is the other side of the coin of the contention that your client and Mr Hussain had never lived together. 

MR KARP:   It is more than that, in our submission, your Honour. It is detail that permitted the applicant, if she was able to do so, to adduce evidence directly contrary to the information or the evidence relied on by the Tribunal.  Simply saying that there was information that they had never lived together does not permit the applicant to go specifically to what troubled the Tribunal. 

GORDON J:   Why could she not have adduced evidence to say – or seek to adduce evidence that they had lived together at any time? 

MR KARP:   Well, your Honour, they did but the evidence was adduced by the family with whom she was then living and by her ex‑husband.  But the specific focus of the Tribunal’s attention, that is, that the other couple attended social functions together and that they were regular visitors to the house where our client was living was not disclosed, and those were, in our submission, particulars of information, that is, details of the information necessary for the applicant, in this case, to actually respond to the Tribunal’s particular concerns.

KEANE J:   I just do not understand that, Mr Karp.  They are told that there is information that your client and her former husband never lived together.  The rest is detail, as the Federal Court said - an aspect of their not living together and the circumstance that the de facto relationship with Ms Taguiam appears to have assisted.  That is a particular if you like of the other side of the coin.  But the critical question is whether your client and her former husband lived together.  You were on notice that they did not.  So, you call evidence to show they did.  You direct your attention to proving that you actually did have a genuine spousal relationship with your former husband. 

MR KARP:   Your Honour, our response to this is that the Tribunal considered the evidence that was given on behalf of Ms Parvin but preferred the confidential – what was referred to as confidential evidence ‑ ‑ ‑ 

KEANE J:   On the basis that it was given by a number of people, and notwithstanding your client’s response initially that it was Ms Taguiam and she was jealous, and then, subsequently, that Ms Taguiam and her friends had some particular animus against your client.  So, those responses were made. 

MR KARP:   Yes, but what in the Tribunal’s mind outweighed the evidence given on her behalf were these particular aspects of the confidential evidence referred to in its decision at paragraphs 99 and 100. 

KEANE J:   Given by a number of people, the combined weight of whose evidence, the Tribunal plainly accepted.  But that is just because there were a number of them and that was inconsistent with – that was an answer to the suggestion that they were acting with some animus towards your client. 

MR KARP:   Which is, in our submission, exactly why it should have been disclosed to the applicant. 

KEANE J:   No, no.  That is about who they are and how many they are and if you accept that it was rightly said that the evidence was confidential and non‑disclosable, that is precisely what you were not entitled to. 

MR KARP:   Well, what was disclosed at paragraphs 99 and 100 was not the information itself.  It was a summary or the effect of the information.

KEANE J:   Yes.

MR KARP:   Therefore, it does not come within section 375A and the authority for that in the Federal Court was Burton and Singh - Justice Wilcox in Burton at paragraphs 41 and 42.  So the 375A problem is dealt with in that way. 

GORDON J:   It might have been different if the disclosure had been limited to your marriage or sponsor for the sole purpose of obtaining permanent residence, but the difficulty is it is the primary particular that your client has given.  You and your sponsor had not lived together in a spousal relationship at any time.  That is the particular that you are given, and that is what notification you are given.  You are put on notice; 99 out of 100 do not take that matter any further, do they? 

MR KARP:   In our submission they do, your Honour.  They take it a great deal further.  They give details of evidence that the applicant could have, were she able to do so, responded to with specific evidence of her own.  Simply saying they did not live together during that period is, in our submission, too general.  It does not go to the particularisation of the information or the evidence against her and that is why, relating this back to section 359A, if particulars of information are to be given, then relying on Paul, information which would permit the applicant to know the specific argument against her and to adduce evidence contrary to that would be necessary - or notice of that would be necessary, pursuant to 359A.  In our submission that just was not done, which is the nub of the issue here. 

Your Honours, there is another part to the applicant’s case and that is – and it is the third issue deserving of special leave, and the question is whether it was sufficient, as the Full Court held, for the Tribunal in this case to have simply told the applicant that it had information from confidential sources, rather than to have disclosed the existence of the 375A certificate.

Now, this Court has held in SZMTA that ordinarily procedural fairness requires the fact of notification of a document constraining the applicant’s participation in the review process to be disclosed.  The Minister appears to acknowledge that but invokes SZMTA in his submission that disclosure of the existence of the certificate could not have made a difference to the result.

The applicant’s submission in this respect is that had the existence of the certificate been disclosed, her solicitors could have made submissions to the effect that the certificate - could have made submissions on the effect of the certificate directing attention to Justice Wilcox’s judgment in Burton.  That could have resulted in disclosure of the summary of information under 359A.  The Tribunal appears to have had no problem in actually referring to and disclosing at least the effect of this information in its decision, rather than giving it to the applicant herself in the course of the review.  That in

itself would have allowed the applicant the opportunity, or may have allowed the applicant the opportunity of adducing evidence to meet the allegations against her. 

Our submission is a vague reference to information from confidential sources, in effect, raising an onus on the applicant to commence a dialogue with the Tribunal as to the source of the confidentiality and what information it had was not sufficient to comply with the requirements of procedural fairness, nor the disclosure of clear particulars under 359 of the Migration Act. 

Your Honours, I was then going to refer back to the synopsis of the argument under ground 1 but that has been, I think, dealt with in the course of my submissions.  May it please your Honours, those are our submissions.

KEANE J:   We need not trouble you, Mr Knowles.

The decision of the Federal Court of Australia is clearly correct.  The application for special leave will be refused with costs.

Adjourn the Court till 10.00 am on Tuesday, 3 December in Canberra. 

AT 12.12 PM THE MATTER WAS CONCLUDED