SFTB v MIMIA

[2004] HCATrans 293

[2004] HCATrans 293

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A249 of 2003

B e t w e e n -

SFTB

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 11 AUGUST 2004, AT 3.52 PM

Copyright in the High Court of Australia

MR P.C. CHARMAN:   If it please the Court, I appear for the applicant.  (instructed by the Refugee Advocacy Service of South Australia Inc)

MS S.J. MAHARAJ:   If it please your Honours, I appear for the Minister.  (instructed by Spark Helmore)

GLEESON CJ:   Yes, Mr Charman.

MR CHARMAN:   Thank you, your Honour.  Your Honours, to a large extent I rely upon the supplementary summary of argument which was filed, I think, last week.  The relevant facts in this matter, if I can deal with them very briefly, is that the Tribunal hearing concluded on 28 March 2003 and then the Tribunal brought its reasons down and subsequently relied upon three pieces of information which post‑dated the Tribunal hearing.  Those three pieces of information were dated 30 March 2002, 2 April 2002 and 25 March 2002.  At no stage was that information ‑ ‑ ‑

HEYDON J:   You say 25 March is before 28 March ‑ ‑ ‑

MR CHARMAN:   Sorry, 25 April, your Honour.

HEYDON J:   April?

MR CHARMAN:   My apologies, your Honour, 2 April and 30 March.  So all three of those post‑dated the last day of the Tribunal hearing.  At no stage was that information or particulars of that information provided to the applicant.  I will not necessarily take your Honours to the application book, but it is clear from the application book that the Tribunal member relied upon those articles to a significant part in the making of its decision.  It referred to them at pages 37 to 39 of the application book and 39 to 40, and in particular, your Honours, the finding and reasons of the Tribunal at page 40, starting at line 20.

Now, your Honours, this is one of those matters where there is no doubt that the Tribunal found that the applicant was persecuted at the time of leaving Afghanistan.  It is very much a question of whether the applicant had a well‑founded fear of being persecuted at the time of the Tribunal hearing.  These three articles, we say, form a significant part of the reasons why the Tribunal found that there is no longer a well‑founded fear of persecution.

What we say that gives rise to, your Honours, is three points which we say are of particular interest in relation to this application for special leave.  The first is whether section 424A of the Migration Act is an exhaustive code and precludes the common law principles of procedural fairness.  In relation to this point and the other two points, your Honours, I am not going to take you to all the cases.  The point that I am making in relation to all three arguments is that there is a significant difference of opinion in the Federal Court as to how section 424A should be dealt with.  The third of those was very much dealt with by your Honours on Monday in SAAP, but in relation to this – and I have referred your Honours to these cases – VAAC ‑ ‑ ‑

HAYNE J:   Just before you come to the cases, do you say that 424A(3)(a) applied or did not apply, that is, was the information of the kind described in (3)(a)?

MR CHARMAN:   Your Honour, at the time of the Full Federal Court, I conceded that, and that can be found at page 84 of the application book.

HAYNE J:   Would you want to contend here to the contrary?

MR CHARMAN:   Yes, your Honour.

HAYNE J:   Leave aside the effect of a concession for the moment.  That may present a real hurdle in your way.  How would (3)(a) not be engaged in relation to this material?

MR CHARMAN:   We say, your Honour, that in relation to (3)(a), at the time of the Full Federal Court hearing VAAC was clearly that country information or information referred to as country information was within (3)(a) – the exception within (3)(a).  Since that time there have been some decisions, your Honour, that suggest that it is a cumulative test and that for country information to be part of that exclusion it should not just – perhaps if I could refer to the exact words:

(a)      that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member –

and the arguments in the Federal Court in relation to that, your Honour, are that it is “and is just about a class of persons”, so it has to come within that to actually be an exclusion to the information that should be provided by the Tribunal.  The argument, therefore, is that country information as such, whilst it may well be about a class of persons, is not just about a class of persons.  For example, in the matter of VHAJ the majority there found that an applicable Italian law was just about a class of persons, but Justice Moore, who was in the minority, found that in fact, no, it may well have been about a class of persons but it was also about an Italian law.

In the case of NARV the majority in that case found that information about documentary fraud in Bangladesh was not just about a class of persons; it was also about documentary fraud in Bangladesh and also went to the weight that should be given to the applicant’s documents when those documents were a relevant part of the applicant’s case.  Now, the minority in that, who was Justice Downes, agreed with what he had to say in the majority in VHAJ.  VEAJ, which is a decision of Justice Gray, seemed to go even further and suggested that it could not have been the intention of 424A(3) to exclude country information per se.  There had to be something narrower than that.

So, your Honours, what we have there is some divergence of views in relation to what the Full Federal Court and the Federal Courts have determined falls within the exception under 424A(3) and whether, in fact, country information, which at the time of VAAC was assumed to be within the exception, in fact, since that time is no longer within the exception, because it is not about the second part, not just about a class of persons.  It may well be about a class of persons but it may well be about other things as well and, therefore, it does not fall within the exception. 

That is the only argument I can put in relation to that, your Honour, and the argument is that there is uncertainty as to what 424A(3) – the exception means in terms of the decisions in the Full Federal Court.  That alone gives rise to a matter of significant interest in this application for leave.

HEYDON J:   What do you say about the Minister’s duties as guardian to ensure that the applicant had better representation than he did?

MR CHARMAN:   Your Honour, I should have indicated – my apologies – that we are relying only upon the supplementary submissions in relation to – I think the initial outline of argument had a great deal to do with the fact that the applicant was a minor and ‑ ‑ ‑

HEYDON J:   You do not press that argument?

MR CHARMAN:   No.  I am sorry, your Honour, I should have made that clear at the outset.

HEYDON J:   That means you are pressing, really, the first of the grounds originally pressed about the failure to update the applicant with the country information relied on, but you are not relying on any other grounds as originally advised.

MR CHARMAN:   No, your Honour.  What we are relying upon, your Honour, is that the common law rules of procedural fairness meant that those subsequent pieces of information should have been forwarded to the applicant for comment given the fact that they were clearly relevant and a significant part of the decision‑making process of the Tribunal.  We say that because 424A is not an exhaustive code, in our submission.

We say that notwithstanding that, that if one looks at 424A, that there should be strict compliance with 424A, given the fact that a great deal of the language there refers to the word “must” and, therefore, it should be construed as a mandatory section of the Act and it should be complied with ‑ ‑ ‑

GLEESON CJ:   What do you understand to be the difference between the issues that you want to argue in this appeal and the issues that we heard argued on Monday?

MR CHARMAN:   Your Honour, in relation to the third ground as to whether any breach of 424A gives rise to a jurisdictional error, none at all.  In relation to whether that is a discretion that should be exercised at the time of deciding whether it is a jurisdictional error or whether it should be exercised at the time of providing relief, none at all.  In relation to the first matter that I have raised as to whether 424A is a complete code and therefore excludes rules of procedural fairness, to some extent, your Honour, I submit that that is a preliminary question that was not dealt with on the appeal on Monday.

GLEESON CJ:   Right.  Let me ask you this about that question:  how was that dealt with by the Full Court?

MR CHARMAN:   Your Honour, it was dealt with by the Full Court at application book 84 and 85, commencing at 25 of page 84.  There I acknowledged at that stage that 424A(3) applied to country information, but the second aspect of that is notwithstanding that, the common law principles of natural justice should have applied and the information should have been forwarded to the applicant.

The Full Federal Court, over the page at 85, with respect, did not deal with it in any great detail.  It simply dealt with it in the fact that there is a conflict between whether there was “any room for residual principles” and referred to WAAJ and VAAC.  They said that, in any event, there was no lack of natural justice.

HAYNE J:   What is meant by the last sentence, “In any event”?  What is that referring to?

MR CHARMAN:   Your Honour, at the hearing in front of the Full Federal Court the respondent had argued that 424A was an exhaustive code and, therefore, the rules of procedural fairness did not apply.  Subsequent to that the respondent withdrew that submission, on my understanding, and was content with the matter being decided upon as to whether the fact that the three documents were not referred to the applicant was a breach of natural justice or procedural fairness in any event.

So that matter was dealt with during the hearing by way of the respondent’s submission that there was a complete and exhaustive code, being 424A, but that was withdrawn subsequent to the hearing.  So, in essence, your Honours, that passage from 84 to 85 of the application book is where, if you like, we take issue with what the Full Federal Court did in the sense that we say that clearly three documents which form a significant part of the judgment were referred to by the Tribunal in its reasons, in its documentation – and those are the passages I referred your Honours to earlier – that natural justice and rules of procedural fairness required them to be sent to the applicant for him to comment on, given the fact they were relevant significant information ‑ ‑ ‑

GLEESON CJ:   What did the Full Court say about that?

MR CHARMAN:   Your Honour, they simply dealt with it on the basis of the background of natural justice in terms of the person being a minor and not being properly represented.  All those matters were dealt with but, with respect, it does not appear to have been dealt with specifically in terms of the point as to whether those documents should have been forwarded to the applicant other than part of a general finding that there was no denial of procedural fairness to the applicant. 

That is really the issue, your Honour, in relation to what we have to say in relation to the first aspect, is that whilst we accept all of those matters in relation to whether the person was a minor, the Guardianship of Children Act, at the end of the day there was that further matter which is independent of the person’s age, that is, the reliance upon documentation which was relevant and significant to the decision‑making process which was not referred to the applicant.

GLEESON CJ:   Is that a point that was raised separately before the Full Court of the Federal Court?

MR CHARMAN:   Yes, your Honour, it was part of the mix, but it was certainly part of the applicant’s case at all times.  It certainly was merged with the fact that it was made worse, on my submission, in the Full Federal Court that the person was 15 at the time, suffering a psychological illness at the first hearing, did not have a migration agent at the first hearing, had one at the second hearing whom he had never met and never saw before who knew nothing about his matter, and all the aspects as to whether the

Minister has responsibilities in terms of ensuring that minors under the Guardianship of Children Act are properly represented.  But part of that was also that, in any event, here were these three documents, significantly relied upon by the Tribunal, and there was no opportunity for the applicant to deal with those.  We say regardless of age, they should have been dealt with.

In terms of the argument in front of the Full Federal Court, it was part of the overall argument – it was certainly a significant aspect of the argument that all of those other concerns funnelled in, if I can put it in that crude sense, to these three documents that should have been referred to the applicant to enable him to make comment on them.  Your Honour, I am not sure that I can say a great deal more other than what is outlined in my written submissions.

GLEESON CJ:   Yes, thank you.  Yes, Ms Maharaj.

MS MAHARAJ:   If it please your Honours, in view of the question that was posed by his Honour Justice Hayne I will make two submissions.  The first submission we make is that if one works with the concession that was made in this particular case regarding 424A(3) then most of the complaints of the applicant in this case, contained in the supplementary submissions, fall by the wayside.

Your Honours will see that the applicant has collected the propositions for special leave in paragraph 15 of the supplementary submissions, and we have also filed some short supplementary submissions in reply.  So all in all, your Honours, if 424A(3)(a) concession were to be taken into account, then possibly the only question that remains for this Court is 15.4.  However, if your Honours were to put the concession to one side, then the questions both in relation to the common law procedural fairness and 424A(3)(a) interpretation is before the Court.

We would say, your Honours, that this is not an appropriate vehicle for this Court to consider 424A(3)(a) because your Honours would not have the benefit of the consideration of the court below on this issue because of the concession that was given by my learned friend.

One thing I do concede, your Honour, on behalf of the Minister, is that my learned friend quite rightly puts it to the Court that there is some difference of opinion at the Federal Court level as to the correct interpretation of 424A(3)(a), especially on the issue of precisely what does the phraseology in subsection (a) mean:

that is not specifically about the applicant or another person –

and also the interpretation of the phrase:

about a class of persons of which the applicant or other person is a member –

Also, there is ‑ ‑ ‑

HAYNE J:   Accepting that that immediate question will not be, I think, directly dealt with in SAAP ‑ it was not a point argued, I think – will any of the other issues that would arise in this matter be affected by the outcome in SAAP?

MS MAHARAJ:   The only other issue that my learned friend has identified, your Honours, is whether common law coexisted with 424A set of provisions and your Honours will recall that the Minister has conceded that prior to section 422B coming into effect there is an acceptance of the position that common law lay side by side with the statutory obligations in 424A.

So apart from the interpretation, to answer your Honour’s question, regarding 424A(3)(a) in this precise way, nothing else remains, because we think it would be addressed by your Honours in the decision in SAAP.  But it does come down to this, your Honours, as to whether this is the correct or proper vehicle to have this Court’s view, especially when that matter has not travelled through the court below and your Honours do not have the benefit of that consideration.

The other thing your Honours will notice, that in relation to the common law breach of procedural fairness, the court below did find on page 85 of the application book at line 13 that “there was no unfairness to the appellant”, and in relation to common law procedural fairness, your Honours have spoken in one breath that the breach of the common law procedural fairness is made out if there is, in fact, unfairness or some sort of practical injustice.  So faced with that particular finding, that would have to be overturned in order to make out a claim for breach of procedural fairness in this case.

I do not think that I can add anything usefully apart from saying that there is an issue but the question really is whether it is an appropriate vehicle or not, and we respectfully submit it is not.

GLEESON CJ:   Thank you, Ms Maharaj.  Yes, Mr Charman.

MR CHARMAN:   Your Honour, if I could deal briefly with a couple of points.  I think, while my learned friend was referring to the question of whether there is any practical injustice, I referred your Honours to NARV where the majority of Justice Ryan and Justice Finkelstein discussed that in

relation to – and that is to be found at 9.1 of the supplementary submissions.  That is one of the issues raised, your Honours, as to whether at the end of the day it is for the applicant to prove there is no practical injustice or whether, in fact, Stead – I am sorry, I do not remember the reference – still applies to the extent to which it has to be shown that it could not have possibly have made any difference.

We say, in any event, if a Tribunal relies upon three significant documents post‑dated the Tribunal hearing without giving the applicant an opportunity to deal with that information or the particulars of it, then it cannot be said on either test that it would not have made a significant difference.

The second issue, your Honour, is the facts of this matter were accepted by the Tribunal that this young man’s grandmother was killed by Taliban, his elder brother was taken by the Taliban, that he was assaulted by the Taliban and his father was tortured by the Taliban, so we say, with respect, it is a good vehicle simply because the issue is a very clear one, unclouded by facts or debates as to whether he was persecuted at the time of leaving Afghanistan, and that at the time of the Tribunal hearing that was accepted.  It is simply a question of those three subsequent documents, whether they should have been supplied under common law rules of procedural fairness or, indeed, whether they were met by the exception under 424A(3)(a).

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in this matter.

AT 4.15 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.27 PM:

GLEESON CJ:   Because of the possibility that the outcome of this matter may be affected by the Court’s decision in SAAP v The Minister, we will stand this matter over until the Court delivers its decision in the case of SAAP v The Minister.  When that decision is handed down, both parties will have 14 days from the handing down of that decision to file in written form any further argument they wish to advance on this matter and we will then give our decision in this matter in the light of today’s argument and those further written submissions.

We will adjourn until 9.30 tomorrow morning.

AT 4.28 PM THE MATTER WAS ADJOURNED