SZCIJ v MIMA & Anor

[2008] HCATrans 87

[2008] HCATrans 087

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S190 of 2006

B e t w e e n -

SZCIJ

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GLEESON CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 FEBRUARY 2008, AT 2.05 PM

Copyright in the High Court of Australia

MR J.R. YOUNG:   May it please your Honours, I appear for the applicant.  (instructed by the applicant)

MR S.J. GAGELER, SC:   If the Court pleases, I appear with MR G.T. JOHNSON for the first respondent.  (instructed by Sparke Helmore)

GLEESON CJ:   Yes, Mr Young.

MR YOUNG:   Your Honours, this application relates to what is submitted is a matter of general importance regarding the interpretation and administration of the Migration Act and, in particular, section 422B of that Act and the reach of that particular provision.  It also, in my submission, brings into consideration questions of whether the Full Federal Court decision in this case and a similar case regarded by the court at least as substantially similar in Lay Lat consistent with later decisions of this Court in SZBEL and SZFDE.  This case relates to a Tribunal, in other words, to the review process in relation to the Act. 

It is common ground that provisions such as section 51A, section 422B, were inserted into the Act following the decision of the court in Miah, but Miah itself was an unusual case in that it was a refugee case, a case involving an application for a protection visa but, due to circumstances, there had been no application for merits review so that the question was in relation to the decision of the delegate in that matter.

The question which arose related to Subdivision AB of Division 3 of Part 2 which deals with what might be regarded in the usual case of a protection visa application as stage one.  That is where the matter is being considered by a delegate, a delegate then makes a decision.       If the decision is unfavourable to the applicant, the applicant has a right of review and if it is a refugee reviewable tribunal, the Tribunal must under section 414 review the decision. 

An unfortunate, in my submission, aspect of the decision of the Federal Court in this matter is that it was decided almost exclusively by reference to the decision of the court in Lay Lat and the court did not have regard to whether there were any differences between the operation of section 422B and section 51A.  In saying that, I am not conceding the correctness of the decision in Lay Lat but, in my submission, whether Lay Lat is correct or not, section 422B raises different considerations. 

The terms of section 422B are set out in the book of respondent’s documents behind tab 4 and your Honours will see that it is in Division 4 of Part 7 relating to the conduct of reviews by the Refugee Review Tribunal.  The effect of the decision of the Court in SZCIJ, this case, is to this effect; that the only provision in Division 4 of Part 7 which creates obligations of procedural fairness is section 424A.  In other words, it is 424A or it is nothing. 

There was, as the respondent’s submissions do make clear, a division of opinion in Federal Court decisions prior to the decision as to the effect of the provision, but one of the strands of authority which was relied on and discussed by the federal magistrate in this case was a decision of Justice French in WAJR 204 ALR 624 which I think is in the applicant’s cases. In that case at paragraphs [58] and [59] his Honour Justice French put forward two reasons why section 422B did not apply in that case.

The first of those was that his Honour found that section 425 of the Act created its own obligations in relation to procedural fairness.  It is the presence of section 425 which, in the applicant’s submission, differentiates the case between section 51A and section 422B because, in my submission, this Court has unequivocally stated in SZFDE, I accept by obiter dictum, the importance of section 425 and that it creates obligations of procedural fairness.  At paragraphs [31] and [32] in SZFDE it was stated that:

The importance of the requirement in s 425 that the tribunal invite the applicant to appear to give evidence and present arguments is emphasised by s 422B.

I repeat those words that it was “emphasised by s 422B”.  The effect of the Federal Court decision in this case is that section 422B negates any obligation of procedural fairness except in relation to section 424A.  The Court went on to cite the terms of section 422B and went on to state in paragraph [32] that:

An effective subversion of the operation of s 425 also subverts the observance by the tribunal of its obligation to accord procedural fairness to applicants for review.

So, in my submission, the Court by way of dictum in SZFDE was saying, notwithstanding section 422B, section 425 in relation to the conduct of hearings by the Tribunal created obligations of procedural fairness.  In my submission, that is also consistent with the reasoning in SZBEL although SZBEL was decided completely without reference to section 422B because of the time that the application for review was made in SZBEL.

GLEESON CJ:   Mr Young, I think you have to deal also with an argument that is put by your opponents that, quite apart from the issues that you have been addressing so far, there are matters that they refer to in their written submissions, including matters raised by a notice of contention, that would indicate that the appeal ought to fail.  You will have to deal with that.

MR YOUNG:   Yes, your Honour.  Your Honour, I will just complete very quickly the point that I was making.  In my submission, there is, in the matters I put to the Court, a real issue of public importance in relation to, firstly, the Federal Court authorities and the High Court authorities and also the effect of section 422B and its Migration Review Tribunal equivalent as to the hearing rules. 

Now, as to what might be regarded as the matters going to the Aala discretion that it would be futile in any event.  The matters with which it was contended that the Tribunal had not put to the applicant were matters which went, firstly, to the question of her returning to her family and, secondly, as to whether she would have been aware of her rights in Bangladesh.      The finding that the applicant could basically have relocated anywhere in Bangladesh simply involved, in effect, a rejection of her central claim in relation to the husband. 

That raised convention grounds relating to her own social group, perhaps her political opinion as well, in that she said that she was concerned in relation to women’s issues in Bangladesh and that her husband who was a conservative and strict Muslim took a stern view in relation to those matters and that she had fears in relation to it.  But the finding of the Tribunal that she could relocate really was only saying that, “We do not accept that you have fears in relation to your husband”, because what they were saying is, “We do not regard you as having any fear where you are and in our view you could relocate either with your family or to live somewhere else”. 

But the finding in relation to living with her family was one of the very matters which the applicant was putting forward as being a matter which had not been raised with her in the Tribunal but yet it was a matter which was fundamental to the decision of the Tribunal.  So that it is not, in the submission of the applicant, an independent basis or a basis on which it could be said that if special leave were granted, that the application would necessarily fail.

The other matter which the respondent puts forward in relation to this application as saying that the special leave should not be granted is that it is put that there was not in any event a denial of natural justice.  I accept that in the court below there was a notice of contention by the respondent in relation to both of these matters but, in view of the view that the court took as to the matters going to the statutory interpretation and ouster of procedural fairness point, it did not consider it necessary to deal with that.

At page 34 and 35 of the application book the federal magistrate dealt with these issues and regarded the particular matters as being of significance.  In my submission, it is clear that the federal magistrate regarded what would have otherwise been a breach of the fair hearing rule under the general law.  His Honour went on to say that until that point he had followed, in relation to decisions relating to section 422B, the decisions of the Federal Court in WAJR, that is the decision of his Honour Justice French, and also a decision of Justice Gray in Moradian.  His Honour went on to say, however, that he did not any longer, having had the decision of her Honour Justice Branson in SZBDF pointed out to him, that he did not any longer regard himself as free to follow the decision of Justice Gray.  In effect, the passage from Justice Branson is the effect that:

As s 424A deals with the obligation of the Tribunal to provide particulars of information to an applicant, there is no scope for a wider obligation to provide particulars of information to be implied into the Tribunal’s review process.

GLEESON CJ:   Because of the terms of 422B? 

MR YOUNG:   Exactly, your Honour.  In other words, 424A is an exclusive code in relation to all aspects of procedural fairness.

GLEESON CJ:   Or, more accurately, an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

MR YOUNG:   Yes, it is that, and also it is the only provision which deals with aspects of procedural fairness.  In my submission, the decisions of this Court say also that section 425 deals with aspects of procedural fairness and that section 424A is not the only provision that deals with aspects of procedural fairness.  Just in relation to this point as to whether it is futile, in my submission, it is clear that the federal magistrate regarded, other than in relation to the issue of what he regarded as being the binding authority of her Honour Justice Branson’s decision, there as having been a denial of procedural fairness and that he would have otherwise followed the decision of Justice French in WAJR and that would have included a consideration of section 425 and whether in relation to the issues which arose in relation to the review that it was incumbent on the Tribunal to raise those matters with the applicant. 

In all events, in my submission, it can hardly be said that the issues in relation to procedural fairness, given that the only consideration of the merits or otherwise of those is by the federal magistrate, it can hardly be said that the matter is so clear that it would be futile for special leave to be granted.  Unless there is any thing else, those are my submissions.

GLEESON CJ:   Thank you, Mr Young.  We do not need to hear you, Mr Gageler. 

In order to succeed in an appeal the applicant would need to succeed not only on the point the subject of the decision of the Full Court of the Federal Court but also on other issues including those raised by a notice of contention in the Full Court.  We think that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed with costs. 

We will adjourn for a short time to reconstitute.

AT 2.26 PM THE MATTER WAS CONCLUDED