SZBWJ & Ors v MIMA & Anor

[2007] HCATrans 100

[2007] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S78 of 2006

B e t w e e n -

SZBWJ

First Applicant

SZBWK

Second Applicant

SZBWL

Third Applicant

SZBWM

Fourth Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 MARCH 2007, AT 4.10 PM

Copyright in the High Court of Australia

__________________

MR A.B. SLATTERY:   I appear for the applicants, your Honour.  (instructed by Kazi & Associates)

MS M.A. PERRY, QC:   If your Honours please, I appear with MR T. REILLY for the first respondent.  (instructed by Blake Dawson Waldron)

GUMMOW J:   Yes, should that be the Minister for Immigration and Citizenship now?

MR PERRY:   Yes, your Honour.

GUMMOW J:   It should.  The record should be altered to show that.  I think there is a submitting appearance for the Tribunal, the second respondent.

MR PERRY:   Yes, your Honour, I understand that to be the case.

GUMMOW J:   Yes, Mr Slattery.

MR SLATTERY:   Your Honours, the matter is concerned with principally two areas, one being the miscarriage of a discretion to grant leave to raise a ground below and the other area being a breach of section 424A.  It would be our argument there is actually a connection between finding a breach of section 424A and a miscarriage of the discretion because the discretion involved a consideration ‑ ‑ ‑

GUMMOW J:   We know that 424A can give rise to a lot of wrinkles.  We would have to be satisfied that the submissions you would want to make on that subject were sufficiently rooted back in findings of the Tribunal.

MR SLATTERY:   I am not sure I follow your Honour.

CALLINAN J:   Perhaps I can give you an example.  If you go to page 16 of the application book, line 24:

I find that the reason it was not commented on by the Applicant, wife was because it had not occurred and that this claim was fabricated for the sole purpose of providing a basis for a protection visa application.

That is the difference between the wife’s account and the applicant’s account, is that right, about the shooting incident?

MR SLATTERY:   That is the difference.

CALLINAN J:   I am not asserting this, you correct me if I am wrong, but your proposition is that the wife’s different version was information within the section that should have been put to the applicant in order to enable him to deal with it and that that was required by the Act, is that correct?

MR SLATTERY:   Yes, your Honour.

CALLINAN J:   Is there anything more to that point than that?

MR SLATTERY:   Conversely it would be that, because the wife is an applicant as well, the information provided by the first applicant should have been disclosed to the second applicant.

CALLINAN J:   If you like, you might put it upon the basis that each should have had the other’s version put, is that right?

MR SLATTERY:   And the children similarly.

CALLINAN J:   Is there anything further to that as information than what I have just put to you?  There is no other information in question, is there?

MR SLATTERY:   That is the form of the information that we are looking at.

CALLINAN J:   That is the information you say that is within the section that should have been put to each of the applicants, the different versions?

MR SLATTERY:   The different versions of the event, yes, that is the information.

CALLINAN J:   Leave aside the wife for present purposes, but that is the foundation for the adverse credit finding against your client at page 16, line 26, is that so?

MR SLATTERY:   Yes, your Honour.

CALLINAN J:   Right.  It seems to me, Mr Slattery, that your problem may be that even though that is so, that is not the foundation in fact for the Tribunal’s decision.  It is not necessary or in any way essential for the Tribunal’s decision that what follows on all of pages 16, 17 down to the top of page 18 demonstrates that your client would have failed because he was unable to show a convention reason for his acceptance as a refugee.

MR SLATTERY:   Your Honour is looking at the discretion to withhold relief?

CALLINAN J:   I beg your pardon?

MR SLATTERY:   Your Honour in that case is looking at the discretion to withhold relief.

GUMMOW J:   That could be so, yes.  We are looking at whether we should grant special leave, because it is not going to do you much good if you get some finding in your favour on 424A, but then you do not get final relief because the decision could stand on its legs without any breach of 424A.

MR SLATTERY:   Because relief would issue despite the breach.

CALLINAN J:   As I read it, you could excise completely everything up to line 30 on page 16 and you would still fail.  There is a further problem for you that even if you succeeded on all of those things, even if the findings were different from what they were, that is, the findings after line 30 on page 16, you still have the problem which I think may be insuperable on page 18 that this is a relocation case, starting at line 6, that if everything else were found in your favour you would fail on the basis of relocation.

MR SLATTERY:   The problem being with my case, to do with the procedural aspect of it, is that the first applicant gave information in relation to the persecutor and it would seem that basically the second, third and fourth applicants were entitled under section 424A to be disclosed that information as well.

CALLINAN J:   I understand all of that, but even if the credit finding is inextricably mixed up or is everything that you say it is, that it involves information that was not put, even if you are absolutely right about that you still have the problem of relocation and relocation is itself directly related to persecution.  For the purposes of the Convention as it is applied by the Australian legislation you are not a refugee – and I am using that term broadly – if you can relocate yourself when you go back safely.

MR SLATTERY:   Yes, your Honour.

GUMMOW J:   Particularly given the character of your client, namely, an educated and skilled businessman.

MR SLATTERY:   That is the finding of the Tribunal?

GUMMOW J:   Yes.

MR SLATTERY:   It depends if the character decision is one of strands or cables.  If we lose the validity of the decision in relation to the first applicant because of section 424A, how then can there be another – is there a strand or cable type aspect to the jurisdiction to make these decisions?  Can he be invalid on one element in relation to persecution and then that does not matter and still succeed on other elements?  That would leave the courts or the Tribunal open to ‑ ‑ ‑

CALLINAN J:   No, but the finding against you is that not only could he, but also his family, could relocate in another area.  So that there is a comprehensive finding in respect of the family on the relocation issue, which is totally unrelated to any question of information which you have defined which may or may not have been put to each of the adult applicants.

MR SLATTERY:   Yes, that consideration, your Honour, on our submission, would only go to the discretion in relation to the grant of the relief and not to actually ‑ ‑ ‑

GUMMOW J:   That may be so, but we are at the stage of deciding whether you are going to get special leave.  This was an application rooted in 39B, was it not?

MR SLATTERY:   Yes, your Honour.

GUMMOW J:   You do not have an automatic right to prohibition and an attached right to certiorari.

MR SLATTERY:   No, your Honour. 

GUMMOW J:   Where it is not just 424A that is in play for the reasons Justice Callinan has been exploring with you.

MR SLATTERY:   The exploration of those issues seems to indicate that his Honour is of the mind that a member of the Executive can at the same time make a valid and invalid decision.

GUMMOW J:   No, no.

MR SLATTERY:   So your Honour is of the view that ‑ ‑ ‑

GUMMOW J:   No, no, we are not here to be interrogated apart from anything else.  You are here to come with a familiarity of our decisions construing section 75(v).

CALLINAN J:   Jurisdiction of a magistrate is a jurisdiction the same as 39A which is the same as the High Court in relation to constitutional writs, the grant of which are discretionary.

MR SLATTERY:   Yes, your Honour.  So in the case of Aala the discretions were discussed and the citations for that went ‑ ‑ ‑

GUMMOW J:   Exactly.

CALLINAN J:   If your case appears to be hopeless for other reasons, then a court is unlikely to exercise its discretion.  Why it may be hopeless for other reasons is that there are two absolutely discrete findings made against you which would disqualify your clients from obtaining a protection visa.

MR SLATTERY:   My understanding that the hopelessness requires that no injustice be suffered either, so it is not mere hopelessness, it is that there is sort of ‑ ‑ ‑

CALLINAN J:   If there are two very good reasons why you would not get a protection visa, there is no injustice done if the case stops now rather than later with exactly the same result.

MR SLATTERY:   It is not clear that if the matter was sent back to the Tribunal ‑ ‑ ‑

GUMMOW J:   Can I put it to you this way.  Just assume the case had come here under 75(v) in the first instance, we had not remitted it anywhere, we had laboured through it and this is where we were now at, the question is, is there a real chance that you would not get your final relief because of Aala considerations?  Answer has to be yes, I would have thought.  Why is it any different and why is it not a fortiori when it comes through the court system to us on a special leave application?  You already had several days in court.

MR SLATTERY:   It seemed that the considerations of relief are being dealt with in that it is the non‑consideration of the executive power and the need to keep a check on that and the relief is being considered not with that perspective in mind.  It is being considered in a general sense.

CALLINAN J:   I am not even satisfied that what you point to is a reason for the decision.  I am not even satisfied of that, but giving you the benefit of the doubt in relation to that, that it is a reason and it is information, giving you the benefit of the doubt on that, you are still, it seems to me, in the position that you have got two unanswerable grounds against you that plainly are reasons for the decision.  Those are matters which, if everything else you said was correct, would almost compel the exercise of a discretion against you.

MR SLATTERY:   Is not the consideration of the hopelessness to be dealt with at the point when the Tribunal would consider the case again, not on the matter as it is now?

CALLINAN J:   No, no, you come and you want relief in this Court.

GUMMOW J:   You want special leave to appeal.

MR SLATTERY:   Yes, your Honour. 

CALLINAN J:   You have got to go back to the magistrate.  The magistrate is not doing a full merits review.  The magistrate is exercising a jurisdiction effectively of the kind or under section 39A of the Judiciary Act.  It is not a merits review.

MR SLATTERY:   There is nothing in the merits in which we are asking the court to look at.  We are looking at the validity of the decision and the character of the decision‑making process.

CALLINAN J:   I am sorry, I have said what I want to say about it, Mr Slattery.

GUMMOW J:   Yes, that is right, it is a 39B case.  We can go over this from here to kingdom come, but it seems to me a pretty simple point.  What do you say about the Aala consideration here?

MR SLATTERY:   We say that the Aala consideration relates to the Canadian Mobil Case and that that case found that in order for the relief not to go in the favour of a case where there has been a breach of a statutory

duty by the Executive, that it would be an exceptional case.  There needs to be some kind of futility in the sense that it was inevitable that if the matter was remitted it would not succeed.  So if your Honours look at paragraphs 52 and 55 in that case his Honour is quite clearly saying “I do not want to apply this principle broadly”.  In the Canadian case there was a cross‑appeal and they actually decided that it would have been futile to send the decision back because the initial application did not contain an element which was required for the jurisdiction to arise in the first place, for the decision‑making Tribunal to arise in the first place.  So it would have been doomed in the sense that there was no jurisdiction for it to be heard again because there was no jurisdiction for it to be heard in the first place.  In this case there was jurisdiction for it to be heard in the first place.

GUMMOW J:   Anything else you want to say?

MR SLATTERY:   No, your Honour.

GUMMOW J:   We do not need to call you, Dr Perry.

We are not satisfied that there are sufficient prospects of success on an appeal for the applicant to obtain from this Court the final relief that is sought on page 98 of the application book to merit a grant of special leave.  Accordingly special leave is refused with costs.

The Court will adjourn to 10.15 am on Wednesday, 21 March 2007 at Canberra.

AT 4.26 PM THE MATTER WAS CONCLUDED