SBZ v The Queen - [2014] HCATrans 23

[2014] HCATrans 023

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B41 of 2013

B e t w e e n -
SBZ
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

CRENNAN J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 14 FEBRUARY 2014, AT 1.56 PM

MR A. VASTA, QC: May it please the Court, I appear with my learned friend, MS K. PAYNE, for the applicant for leave. (instructed by Fraser Power Solicitor)

MR A.W. MOYNIHAN, QC: May it please the Court, I appear with my learned friend, MS B.J. MERRIN, for the respondent. (instructed by Director of Public Prosecutions (Qld))

CRENNAN J: Yes, Mr Vasta.

MR VASTA: Thank you, your Honour. Your Honours, this application for special leave proceeds upon two bases. The first basis is that the primary court and the Court of Appeal failed to recognise the principle that the applicant’s sentence should have been ameliorated because of the consequences flowing from the unlawful publication of confidential transcripts, and in addition to that, a statement which was taken by a police officer which was said by that police officer to have been confidential and was not going to be distributed in any way. That breach of undertaking, together with the unlawful publication of confidential transcripts of proceedings before the Australian Crime Commission, caused the applicant for leave to be in fear of some consequences that might flow if those particular matters were known to those whom he implicated, and who had done him harm in the past.

Whilst it is correct that the imposition of a proper sentence should not necessarily involve the application of strict mathematical formula, it can be demonstrated in this case that no adequate consideration was given to the fact that the applicant was gripped by fear by virtue of the unlawful publication of the confidential transcripts and this particular statement, which the Crown has conceded in its outline had been published to the legal advisers of the two persons who had been responsible for some harm that had occasioned the applicant in the past, namely, the Lacey brothers.

CRENNAN J: Mr Vasta, during the course of imposing sentence, the trial judge at application book 29, around line 38, describes the fact that he has given a substantial discount:

but I have formulated it on the basis of the cooperation you have extended, and also the real concern you have about the risks to which you feel you will be exposed –

so his Honour the trial judge took into account both the cooperation and also the fear in relation to being an informant. If one goes to page 42 of the application book and looks at paragraph [37], the final two sentences I direct your attention to:

The facts that the sentence has subsequently been published and that the applicant has received further threats in custody…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] HCATrans 23
Decision Date

CaseChat Overview and Summary

SBZ (the applicant) appealed to the Full Federal Court against a decision of the Federal Court of Australia which had dismissed his application for judicial review of a decision made by the Minister for Immigration and Border Protection. The applicant sought to challenge the Minister's decision to refuse to grant him a protection visa.

The primary legal issue before the Full Federal Court was whether the Minister's delegate, in refusing the protection visa, had failed to consider relevant considerations and had taken into account irrelevant considerations, thereby rendering the decision legally unreasonable. Specifically, the applicant argued that the delegate had failed to properly assess the risk of harm he would face if returned to his country of origin, and had instead placed undue weight on the applicant's alleged lack of credibility.

The Full Federal Court found that the delegate's assessment of the applicant's credibility was central to the decision-making process. The court held that while a delegate is entitled to find an applicant not credible, this finding must be based on a proper analysis of the evidence and must not be arbitrary or irrational. In this instance, the court concluded that the delegate had failed to adequately explain the basis for her adverse credibility findings and had, in doing so, failed to consider relevant aspects of the applicant's claims and had taken into account irrelevant considerations. Consequently, the delegate's decision was found to be legally unreasonable.

The Full Federal Court allowed the appeal, set aside the decision of the Federal Court, and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders