SZCKV v MIMIA & Anor

[2007] HCATrans 124

[2007] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S149 of 2006

B e t w e e n -

SZCKV

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 3 APRIL 2007, AT 9.39 AM

Copyright in the High Court of Australia

MS R.S. FRANCOIS:   If the Court pleases, I appear for the respondent Minister.  (instructed by Clayton Utz)

HIS HONOUR:   Yes, Ms Francois.  The Court holds a certificate from the Deputy Registrar that he has been advised by the solicitor for the second respondent, that is to say the Tribunal, that it submits to the order of the Court, save as to costs.  There does not seem to be an appearance by the applicant.  Call the matter outside the Court, Mr Deputy Registrar.

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Thank you.  The Court is informed that the applicant notified the Deputy Registrar yesterday that he would not be attending today and, in effect, making an adjournment application of this present application to reinstate.  So I think the best method of procedure, Ms Francois, is for you to take me through the submissions which would indicate on your part, the Minister’s part, that the prospects of special leave being granted at the end of the day are so weak that there would be no point in granting an extension of the application now made to adjourn the summons filed on 23 February 2007 seeking reinstatement.

MS FRANCOIS:   Your Honour, the applicant claimed a protection visa on the basis that he was a Muslim and a member of a political party in India.  He was refused the protection visa application on 14 February 2003 by a delegate of the first respondent.  He then lodged his application with the second respondent seeking a review of that decision.  In paragraph 5 of my written submissions I highlight a part of that application which is relevant for your Honour’s consideration and that is in his application to the second respondent, in response to the question, “Please tell us why you consider yourself to be a refugee?” he wrote, “Please refer to the above departmental file” and then cited the file number correctly.

The RRT then invited the applicant to a hearing in its standard form letter advising him that it could not be satisfied on the information before it that it could make a favourable decision and asked him to attend a hearing.  That letter was sent to both his migration agent and to the applicant.  On 1 October the RRT received a response from the migration agent indicating that he did not wish ‑ ‑ ‑

HIS HONOUR:   That is 1 October 2003?

MS FRANCOIS:   I am sorry, yes, 1 October 2003 that he did not wish to attend the hearing so the RRT proceeded on the papers.  Your Honour, there is really only one issue at the heart of this application and that is whether or not the applicant was denied procedural fairness.  In both the Federal Magistrates Court and before his Honour Justice Moore the matter was disposed of on the basis that there was no procedural unfairness.

HIS HONOUR:   Where is the relevant passage in Justice Moore’s decision of 27 April 2006?

MS FRANCOIS:   Yes, your Honour.  The relevant passage is towards the end.  His Honour does it at about paragraph 16.

HIS HONOUR:   Yes.

The appellant gave all information contained in the Departmental file to the Tribunal for the purpose of the application. Accordingly, the contents of the Departmental file was information comprehended by the exception in s 424A(3)(b). As indicated earlier, I agree with the Federal Magistrate’s analysis. No error attended his Honour’s consideration of the issue raised in this appeal.

MS FRANCOIS:   Yes, your Honour.  That was the only issue that was agitated before his Honour Justice Moore.  What is interesting, though, is that in paragraphs 11 and 12 of Justice Moore’s decision, an alternative basis for dismissing the appeal was put.

HIS HONOUR:   What was that?

MS FRANCOIS:   That was that in fact if one reads the decision of the Tribunal the information from the Department’s file was not the reason why it affirmed the decision.  The actual reason why the Tribunal affirmed the decision was a lack of information and so 424A was not enlivened because there was no particular information before it, it was merely a lack of information.  That might be the better analysis, but either way, 424A did not apply and there was no failure to accord procedural fairness.

HIS HONOUR:   Is there a draft leave application to this Court?

MS FRANCOIS:   Yes, there is, your Honour.  It was filed on 24 May 2006.

HIS HONOUR:   Yes, I have it.  The grounds for that, do they add anything new?

MS FRANCOIS:   No, your Honour.  The first ground set out at paragraph 2 is essentially meaningless and paragraph 3 repeats the allegation of a breach of 424A.

HIS HONOUR:   Yes, thank you.  What do you say then I should do this morning?

MS FRANCOIS:   Your Honour, we would submit that your Honour should refuse the application for an adjournment for the same reasons that your Honour would refuse to reinstate the application for special leave to appeal because the appeal itself is manifestly futile.

HIS HONOUR:   Thank you.

The applicant moves by summons filed 23 February 2007 for the reinstatement of an application for special leave to appeal.  The application for special leave to appeal was filed as long ago as 24 May 2006 and was deemed abandoned on 21 June 2006.  The application for the adjournment of the summons should be refused and this is because the application for reinstatement has no prospects of success.

The application for reinstatement has no prosects of success because the special leave application itself has prospects of success that are extremely weak and would not merit any exercise of discretion in favour of reinstating the application in respect of that special leave application.

As explained to the Court this morning by counsel for the first respondent, the Minister, the only grounds that could have any cogency would turn upon section 424A of the Migration Act 1958 and however they are looked at they present very weak prospects of success.

Accordingly, this morning’s application for adjournment is refused and the summons filed 23 February 2007 is dismissed.

MS FRANCOIS:   Yes, your Honour.  The Minister would seek his costs.

HIS HONOUR:   Yes.  Dismissed with costs.

MS FRANCOIS:   As the Court pleases.

HIS HONOUR:   The Court will now adjourn.

AT 9.48 AM THE MATTER WAS CONCLUDED