SZBDO & Ors v MIMA

[2007] HCATrans 805

[2007] HCATrans 805

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S214 of 2006

B e t w e e n -

SZBDO

First Applicant

SZBDP

Second Applicant

SZBDQ

Third Applicant

SZBDR

Fourth Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2007, AT 2.56 PM

Copyright in the High Court of Australia

__________________

SZBDO appeared in person.

MR T. REILLY:   May it please the Court, I appear for the first respondent.  (instructed by Sparke Helmore Lawyers)

GUMMOW J:   Now, is there any difficulty with the first applicant using his own name in this Court?  He is about to address us, so we just want to clear this up first.

MR REILLY:   Your Honour, the practice would just be to refer to him as the applicant, but it is the practice that these proceedings are published on the internet so section 91X has to be borne in mind.

VIKTORIYA GOGINA, sworn as interpreter:

GUMMOW J:   Now, would you tell the applicant that we have read the written materials and he now has the opportunity to speak to us to say anything further that he wishes in supplementary provision to what has been already written.

SZBDO (through interpreter):   Your Honour, you know in my initial statement, and I already provided this information to the Department of Immigration, I already explained that in 1991 all major Latvian newspapers published a list of members of the KGB along with their addresses and telephone numbers ‑ ‑ ‑

GUMMOW J:   Just before we go any further, you should ask the applicant if he is appearing for himself and members of his family who are the second, third and fourth applicants.

SZBDO (through interpreter):   Actually, my wife, she is here with me in the courtroom and I have got the written letters from my two daughters.

GUMMOW J:   Thank you.  Yes, proceed.

SZBDO (through interpreter):   You know, your Honour, my name, my address and my telephone number, they were also published, and since that time my life turned into nightmare and my fear of persecution was reinforced by the fact that as much as 20 former KGB agents have been found dead in mysterious circumstances since year 1991.

You know after the hearing of the Tribunal, the Tribunal contacted the Latvian Human Rights Committee seeking for information in order to support the review function of the Tribunal.  The Tribunal actually asked to provide answers to the following questions.  The applicant actually claims that in 1991 a list of KGB officers was published in Latvian newspapers.  Was such a list published in Latvia in 1991, or not ‑ ‑ ‑

GUMMOW J:   Just a minute.  That is many years ago now.  Is it correct that Latvia has been a member of the European Union since 2004?

SZBDO (through interpreter):   Yes, I think so.  Yes, your Honour.  The second question:  the applicant claims that there have been at least 20 former KGB officers who have been killed in suspicious circumstances.

GUMMOW J:   We know all of this and we have read it all in the papers.  What we need to be told is what it is that is the legal error in the decision of the Federal Court given by Justice Finkelstein.

SZBDO (through interpreter):   Actually, your Honour, what I was planning to do was I was planning to show you what kind of mistake I think was made by the Tribunal and then to explain why I think that the federal magistrate and the Federal Court did not see this particular mistake. 

GUMMOW J:   Go on.  But it is not a question of fact.  It is a question of law, and the question is what legal principles were misapplied by Justice Finkelstein.

SZBDO (through interpreter):   But I am going to talk about it, your Honour.  It is not a long speech.  I am going to talk for about 10 minutes.

GUMMOW J:   Very well.

SZBDO (through interpreter):   The third question was:  are former KGB officers singled out for discriminatory practices or not?  On 6 June 2003, the Tribunal got the following answers to those questions:  yes, a list of some former KGB officers had been published by some nationalistic newspapers.  The state had not punished publishers for providing such information.  If you need more specific information, we can provide it.  So my evidence, my claims were supported. 

The second point:  there were some reports about some former KGB officers being killed in suspicious circumstances.  Nevertheless, according to the police, these cases related to activities of organised crime. 

Then the third answer:  since the independence of Latvia was restored, political activities and access to some professions and information in public sphere for former KGB officers is limited by legislation.  None of the ruling parties and very few opposition ones opposed such limitations.  Actually, I provided four copies of this particular email.  However, on 25 June 2003, the Tribunal affirmed the decision of the delegate.  Actually, the Tribunal stated:

In the context of an absolute lack of any independent corroboration for his claims, and the lack of corroborative independent information (which I discuss below) of the applicant’s claims, I am not inclined to accept that those claims are true. 

The Tribunal also stated:

I am satisfied that the Latvian government is able and willing to provide effective protection against any unlawful discrimination or mistreatment.

It is on page 50, your Honour.  Actually, what the Tribunal did, it concealed some parts of the email, but relied upon others in making its decision.  For example, the Tribunal said:

There is no information available to me, including information from the two main Latvian human rights organisations, which would support the applicant’s claims that there have been multiple suspicious deaths or disappearances of former KGB officers because they are former KGB officers.  The only information available to me relates to former KGB officers involved in organised crime.

Actually, I would like, your Honour, to attract your attention to the matter of SZJDY.  Actually, in this particular case, the Tribunal also concealed some information from the applicant and his Honour said the following:

I consider that . . . the secrecy which the Tribunal gave to its inquiries, and its selective disclosure of their outcome, might cause a fair‑minded lay observer to reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided -

That is in paragraph 22.  His Honour also said:

There was nothing intrinsically confidential in the information contained in the emails . . . Under s.424(1) the Tribunal was bound to have regard to all the relevant information which it obtained.  Full disclosure of the information to the applicant would, in my opinion, appear to be consistent with the Tribunals’ obligations under s.425 to allow the applicant a meaningful opportunity to address the evidentiary issues arising in the review –

That is in paragraph 23.  Actually, I think that it was done in order to provide opportunity for the applicant to comment upon some kind of unclear matters in the case.

I would also like to refer to the High Court matter of SAAP.  Actually, I submitted this particular case and in paragraph 50 on page 14 it said:

The obligation on the Tribunal to give the invitation and to invite comment on the information . . . applies to information received by the Tribunal from sources other than the applicant . . . It only applies to information that the Tribunal considers “would form part of its reason for refusing the application for review”.  Nevertheless, the object of the section must be to provide procedural fairness to the applicant by alerting the applicant to material that the Tribunal considers to be adverse to the applicant’s case and affording the applicant the opportunity to comment upon it.

So the question I wish to address is whether the Tribunal was obliged under section 424A to give us written particulars of the information it had obtained from the evidence of the Latvian Human Rights Committee in circumstances where the Tribunal considered that the information would be the reason or part of the reason for affirming the decision under review - and not only the decision under review - and to give us written particulars of the information it had obtained from other sources that the Latvian state would be able and willing to provide effective state protection for the applicant.

Actually, I believe that the federal magistrate and the Federal Court of Australia were to accept that the information set out in the email was actually information about effective state protection and was about me.  

That is why I think that the Tribunal was obliged to give me the information and to invite me to comment on the information.

If, however, no breach of section 424A is established, then I wish to raise another issue – whether the Tribunal failed to accord procedural fairness by providing false statements, by concealing relevant information, by selective disclosure.

Actually, I have got the English copy as well of my speech.  I can give it to you if it is relevant.

GUMMOW J:   Go ahead.

SZBDO (through interpreter):   That is all, your Honour.

GUMMOW J:   Thank you.  Sit down if you would.  We do not need to call on you, Mr Reilly.

We see no error in the treatment of the issues in this matter in the judgment of Justice Finkelstein, in particular the issues respecting section 424A of the legislation and the alleged denial of procedural fairness in the Tribunal.  Accordingly, the application for special leave is refused with costs.

AT 3.17 PM THE MATTER WAS CONCLUDED