SZBYR & Anor v MIMIA & Anor

[2006] HCATrans 716

[2006] HCATrans 716

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S582 of 2005

B e t w e e n -

SZBYR

First Applicant

SZBYS

Second Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

For directions

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 DECEMBER 2006, AT 12.03 PM

Copyright in the High Court of Australia

__________________

MR C.D. JACKSON:   May it please the Court, I appear for the appellants.  (instructed by Kazi & Associates)

MR R.T. BEECH-JONES, SC:   If the Court pleases, I appear for the first respondent.  (instructed by Clayton Utz)

HIS HONOUR:   Mr Jackson, there is just one problem I have.  Those words in the sixth line on page 2 which say “particular 1 in the notice of appeal”, is that right?  Should it not just be “particulars”?

MR JACKSON:   Yes, it should.

HIS HONOUR:   Okay.  Mr Beech‑Jones, do you have any problem with this notice of appeal?

MR BEECH‑JONES:   I do not have any problem with it in terms of meeting it, your Honour.  I do not want to…..my friend’s notice, but if your Honour looks at what is 1.1, which probably should be 2, there are really two grounds in that.  His Honour should have found that section 424A was not complied with and then it says:

and, in the absence of any evidence of disentitling conduct on the part of the Applicant, His Honour should have granted relief.

That really should be, in my respectful submission, a separate ground because, as I understood your Honours, that was the real issue upon which special leave was granted, namely, if there was a contravention of section 424A, was it nevertheless open to his Honour to say that relief should not be granted because it was not part of the reasons.  Now, I understand my friend wants to attack the assumption that it is part of the reasons but, as I understood it, the point of principle was that proposition.

HIS HONOUR:   Just go logically back a step.  You are going to put on a notice of contention, are you?

MR BEECH‑JONES:   Well, I have thought about that, your Honour, a bit further.  Because his Honour did not make a positive finding of a contravention of section 424A, the burden of demonstrating that is on my friend, so that, strictly speaking, we do not need to because he has to make out the contravention or satisfy the Court of a contravention and then we, in answer to that, can make submissions.

HIS HONOUR:   You say that is caught up in the ground presently numbered 1?

MR BEECH‑JONES:   Yes, your Honour, that is caught up in presently ground 1 and the first half of presently ground 1.1.  Perhaps the difficulty of ground 1 is it says “erred in holding” when really it should be “erred in failing to hold that there was error”, because, as I understand his Honour’s reasons, he just did not say one way or another.

HIS HONOUR:   Mr Jackson, let us take ground 1 as it is.  Do you have a problem if it read “His Honour erred in failing to hold that there was error in the decision below”?

MR JACKSON:   Well, the difficulty is, with respect to his Honour, it is not clear whether he did or he did not say it.  An alternative formulation would be “erred in holding or failing to hold”.  I realise that sounds a little bit odd, but it really is very difficult to say whether his Honour has adopted what he characterises as the Federal Magistrate’s ‑ ‑ ‑

HIS HONOUR:   Mr Beech‑Jones, are you going to attack, is it SAAP?

MR BEECH‑JONES:   I have not got final instructions on whether we would need to seek leave.  I think we would have to actually ask the Court for leave to do that because ‑ ‑ ‑

HIS HONOUR:   Some Justices think that it is necessary to apply for leave and get it and others do not, but everyone is agreed on the proposition that it is not easy to overrule prior authorities and you would have to take account of John v Federal Commission for Taxation, the sort of things that are discussed in that case.

MR BEECH‑JONES:   Indeed, and without burdening your Honour, there are internal government…..they would think very carefully from a government perspective of whether they embark upon that step and I am sorry to tell your Honour that on that issue I do not have any instructions yet.  The question of the extent to which it would seek in submissions to argue that SZEEU, which is a Full Court of the Federal Court decision, should not be followed is actively being considered, at least part of that will

be, but that is not a question of leave, nor the burden that your Honour has referred to.

HIS HONOUR:   No, this Court does not mind about overruling Federal Court cases.

MR BEECH‑JONES:   No, indeed, I need not worry your Honour too much about that, but on SAAP I do not have final instructions on that yet, but obviously my client needs to get its position together.  Can I just say, your Honour, the various problems that exist in the notice of appeal do not trouble us, but I think just in terms of clarity.  So, your Honour, I think that my friend said that he sought 1 to read “His Honour erred in either holding that there was no error in the decision below or failing to hold that there was error”, and then the second part of that sentence “and erred” is probably a separate ground:

His Honour erred in finding that the Tribunal’s decision “was unaffected by any information to which s424A might have applied”.

HIS HONOUR:   Just pausing there.  Mr Jackson, you are happy, are you, with the reformulation of the first line of ground 1 that you propounded that Mr Beech‑Jones has just repeated?

MR JACKSON:   Yes, I am, your Honour.

HIS HONOUR:   Are you happy if the words beginning “and erred in finding” should be a new ground repeating with words “His Honour erred in finding”?

MR JACKSON:   Yes, I am, your Honour.

HIS HONOUR:   That gets us over to what is currently numbered 1.1.  Are you happy with the first three lines becoming ground 3?

MR JACKSON:   Yes, your Honour.

HIS HONOUR:   Are you happy with the last two lines becoming ground 4?

MR JACKSON:   Yes, your Honour.

HIS HONOUR:   What are we going to do about particular 1 which led us on this journey?  What is that a particular of?  I suppose it is a particular of the renumbered ground 2, is it not?

MR JACKSON:   Yes.

MR BEECH‑JONES:   And, I am sorry, 3 I think, your Honour.

HIS HONOUR:   I do not think we need 1.1.2, do we?  That is really all covered in the new ground 3.

MR JACKSON:   Yes.  There is one particular looking for a home.

HIS HONOUR:   Particular 1.1.1 is looking for a home?

MR JACKSON:   Yes.  Mr Beech‑Jones has suggested that it is new ground 3, yes, a particular to new ground 3.

HIS HONOUR:   Yes, I think he is right.  All right, if you are happy with that.  No other problems?

MR BEECH‑JONES:   Well, I am sorry, your Honour, I have not taken on the burden of ‑ ‑ ‑

HIS HONOUR:   No.

MR BEECH‑JONES:   But none that I am aware of, I should say.

HIS HONOUR:   I think if you file a document styled notice of appeal in the form we have just been discussing, then we can proceed.

MR JACKSON:   Yes.

HIS HONOUR:   When you get instructions one way or the other, Mr Beech‑Jones, you had better act.  I just forget offhand when notices of contention have to be on by but, whatever the time, it should be complied with.

MR BEECH‑JONES:   Yes, I think there is certainly a rule about time.  It is the same time as notices of cross‑appeals.  It is either 14 or 28, but we need to do it quickly.  We will probably act on the basis that at least an application in respect of SAAP needs a notice of contention, but because my friend carries the burden with 424A nothing arises from that.

HIS HONOUR:   All right.  The Court will now adjourn.

AT 12.12 PM THE MATTER WAS CONCLUDED