SZDMC v MIMIA

[2006] HCATrans 48

[2006] HCATrans 048

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S333 of 2005

B e t w e e n -

SZDMC

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 FEBRUARY 2006, AT 1.05 PM

Copyright in the High Court of Australia

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

MR G.T. JOHNSON:   May it please your Honours, I appear for the respondent.  (instructed by Clayton Utz)

KIRBY J:   Is it convenient for you to deal with this matter now, although it is the usual lunch time?  We were hoping to go to the memorial service for the late Justice Lockhart at 2 o’clock.

MR KARP:   Your Honour, I am at the disposal of the Court.

KIRBY J:   Is it convenient to you?

MR JOHNSON:   Similarly, your Honour.

KIRBY J:   We will deal with this matter now.

MR KARP:   Thank you, your Honour.

KIRBY J:   What do you say, Mr Karp?

MR KARP:   Your Honour, this case arises from the conduct of the Refugee Review Tribunal in representing to an applicant that his witness who was nominated by him would be heard at a later date and then failing to hear that witness.  There are two reasons, in my submission, why special leave should be granted in this case.  The first is that, notwithstanding Justice Stone’s holding to the contrary, there was a misleading of the applicant and therefore, absent section 422B of the Migration Act, there was a breach of procedural fairness.  The second is leading from this there was a difference of opinion in the Federal Court as to the meaning and effect of section 422B of the Migration Act, which can be found at page 6 of my book of authorities.

KIRBY J:   We would normally take such a matter up in a case which had some prospects of success.  Here, (a) your clients were believed to be of no credit, (b) the witness who it is suggested did not give evidence but might have was Mr F who was a relative of your client and, at least on the face of things, would not appear strongly to favour changing such a fundamental ground, and (c) your client really did not jump up and down and make a fuss about the failure to call Mr F, and some onus is on them to insist and press the calling of a witness who they say is material.

MR KARP:   Your Honour, if I can address those questions in turn.  The applicant said in his response to the hearing notice – and that can be found at page 2 of the supplementary application book – that the witness was an eyewitness to support his claims and he will give oral evidence regarding his persecution.  Now, the fact that the witness was a relative does not mean the witness should be prejudged or that the witness’ credit should be prejudged or assumed in the absence of him being heard.

KIRBY J:   No, that is true, but we start with a case where the applicant was believed to be a person of little credit.

MR KARP:   Yes.

KIRBY J:   So what you have to try and conceive is a witness who is going to alter such a significant and affirmative and strong finding.

MR KARP:   And that cannot be decided, your Honour, unless the witness is heard in some way.

KIRBY J:   I realise it cannot be decided a priori, but the fact is that the witness who is proffered is a cousin of your client and it is also true, as Justice Stone pointed out, that your client really did not make the point affirmatively that he had suffered an injustice.

MR KARP:   Well, if I could take your Honour to the particular part of the transcript.  The witness was sworn to give evidence.  In other words, there was a representation, at page 3 of the application book that he would be giving evidence.  The Tribunal member said, at page 4 at line about 6 or 7:

Mr [F], at some later date I will ask you to come in and give your evidence.

That was, in essence, repeated in the following page at about line 8.  Now, Mr F was not heard on that day and I should mention that the later date was unspecified.  Now, when it came to the end of the second day of hearing, on page 42 of the application book, the Tribunal member asks the agent whether there was a witness and the agent replies, yes, and says he is not here today because he is sick, and then says:

If any days it is possible he will be attend before the Member but today he is sick.

So there is an offer or representation that this witness can appear. 

KIRBY J:   Take me to that again.  Where is it?

MR KARP:   Line 14, 15, your Honour, on page 42:

If any days it is possible he will be attend before the Member but today he is sick.

Then the member says:

Okay.  Is there anything else, Mr Moller?

And then winds up the hearing.  Now, it is true that the agent did not jump up and down and neither did the applicant, but the Tribunal did not say the witness is not going to be heard.

KIRBY J:   But the Tribunal did call for submissions which you do not normally have until you have completed evidence.

MR KARP:   That is so, but the calling of ‑ ‑ ‑

KIRBY J:   He went on to say at line 41:

I will produce a written set of reasons setting out the decision and a copy will be sent to you.

All of this is indicative of finality.

MR KARP:   It is indicative of finality of the applicant’s role in the proceedings.  It is not necessarily indicative that the witness will not be heard.

KIRBY J:   It may be that this is a slip up and a mistake and so on, but one would have expected that in those circumstances – and this is what occurred to Justice Stone – your client or representative would say, “Now, steady on, I haven’t finished my case.  I have got to call somebody else.”

MR KARP:   Well, your Honour, there was a letter sent to the Tribunal that this witness had personal knowledge of the applicant’s case.  The Tribunal member knew at some point before he made the decision that there was a real problem with the applicant’s credit.  The witness, as an eyewitness, could have repaired at least some of the damage to his credit and the Tribunal member did not say, “I will not hear the witness”.  He may have suggested that in comments he made after the exchange with the agent, but he did not say it overtly.  The applicant himself was entitled to expect the witness who had been sworn, who the Tribunal member had said would be heard at a later date, would in fact be heard in the absence of clear words to the contrary.  So, in my submission, your Honour, the ‑ ‑ ‑

KIRBY J:   What is wrong with Justice Stone’s view that we are looking at procedural unfairness and we are looking at whether or not relief should be granted on judicial review for that unfairness, that you have to consider the discretionary character of it and, at the very least, you would have expected something to have been said at that point where it is really quite clear that the Tribunal was going ahead to dispose of the matter finally without Mr F?

MR KARP:   Well, your Honour, in my submission, it was not ‑ ‑ ‑

KIRBY J:   And perhaps some indication of what Mr F would say and how that would affect the outcome of the case?

MR KARP:   Well, in my submission, your Honour, it was not quite clear that the member had decided to close the proceedings and not to hear Mr F.

KIRBY J:   We do not have a proof of what Mr F would have said?

MR KARP:   No, we did not – we do not.  The reason for that ‑ ‑ ‑

KIRBY J:   So we just have to speculate that this relative of the applicant would have said something that would have made all the difference between a person disbelieved on his credit and a person accepted and granted refugee status.

MR KARP:   Well, your Honour, the fact that Mr F is a relative does not stop him from being a credible witness.

KIRBY J:   I realise that and I only raise it as a sort of factor.  You have sat here today and you have seen earlier cases, including one involving refugees where a grant was given.  We have to conserve the grants to cases where we think there is a miscarriage of justice or some important general principle.  Now, if we look at this case, the miscarriage of justice does not leap out because of the fact, essentially, that your client, given a clear indication that the Tribunal was going ahead without Mr F, did not say, “You have got to wait until I have presented Mr F’s evidence.  I haven’t finished.”  We have to judge which cases deserve special leave and ‑ ‑ ‑

MR KARP:   Certainly, your Honour.

KIRBY J:   ‑ ‑ ‑ that is the weakness in your case I think.

MR KARP:   Well, all I will concede, your Honour, is that what the Tribunal said was equivocal.  It could be taken one way or it could be taken the other.  Now, if it could be interpreted as leaving room for the witness to give evidence later, as the Tribunal member had said at the start of the first hearing, then he has been denied an opportunity to put his case. 

Now, the Tribunal member, as I think your Honour alluded to, did not say the witness can give his evidence in writing, as is sometimes done.  The Tribunal member simply appears to have said, or appears to have meant, “Well, that is it.  I am not going to hear from the witness.  He can’t help.  I am going to decide this case without the witness.”  This is after the witness had been represented as somebody who has personal knowledge.  Whether he is a cousin or not, or a brother or not, in these cases it is rare enough for somebody to have an eyewitness to their particular difficulties.  If there is such an eyewitness, relative or not, then, in my submission, that person should be heard. 

The Tribunal cannot, in my submission, decide arbitrarily whether or not to hear the person and, in my submission, section 426 does not say that the Tribunal can arbitrarily decide whether or not to hear a person.  That decision, which is a preliminary decision to the ultimate decision of whether the person is a refugee, must be taken itself on the basis of procedural fairness or natural justice.  Now, this Tribunal member appears, because the witness was not there on a particular day, to have arbitrarily determined that the witness could not be heard.

KIRBY J:   Yes, I think we understand the way you put the case.  Is there anything else you wish to add?

MR KARP:   Not on that point, your Honour.

KIRBY J:   Anything else on any other point?

MR KARP:   The submissions on section 422B, your Honour, are, I think, adequately handled in my outline of submissions.  There has been a difference of opinion in the Federal Court at the appellate level, albeit not in the Full Court.  But, as I have said in my submissions, most of these cases are now heard by single judges and it may be some time before section 422B is considered by a Full Court.  If your Honour pleases.

KIRBY J:   Yes, thank you.  Mr Johnson, what do you say about the course that was followed?  Just concentrate on that matter if you would.

MR JOHNSON:   Yes, thank you, your Honour.  Well, your Honour, firstly, we say that the applicant was not in any way misled and that when one reads the whole of the exchange between Mr Moller and the Tribunal at pages 42 to 43 of the application book, that reading indicates what Justice Stone found.  There is no promise there to call Mr F.  The hearing started with an expectation that he would be called in later to give evidence.  Well, on this page, page 42, the Tribunal does reach Mr F, but of course he is not there and this dialogue then proceeds.  There is no promise by the Tribunal that he be called.  The member, Mr Gibson, sets out in those lines from 30 to 40 on page 19 what the Tribunal is going to be taking into account and that does not include anything to come from Mr F. 

The word “okay”, as her Honour found, which occurs on that page, read in context, did not indicate assent to the proposal that Mr F attend on some other day.  The Tribunal simply moved on asking the agent if there was more.  The agent said no.  There was no request for an adjournment to hear Mr F at that time or later and it is clear that the Tribunal indicated that it was moving on to make a decision.  So the threshold proposition that the applicant left this hearing somehow misled that Mr F was going to be called really is not made out.  It is not evident that there would be a breach of the rules of natural justice in this case whatever be the breach of section 422B. 

Secondly, your Honour, this case falls too much within the specific field of section 426 of the Act.  Section 426 was briefly touched upon, your Honours might recall, in SGLB, but only in passing.  Section 426(3) envisages that an applicant has notified the Tribunal that the applicant wishes a witness to be called, as happened here at page 2, and subsection (3) provides:

If the Tribunal is notified by an applicant under subsection (2) the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.

So that is the other problem, that there is a specific statutory permission here, in effect, for the Tribunal to do as it did.  Certainly the statute makes clear that there is no obligation upon the Tribunal to heed the applicant’s request.  I think I have already mentioned that there was not any further application to hear from this witness either then or subsequently.

KIRBY J:   Yes.

MR JOHNSON:   So the conclusion, your Honour – I think that pretty much completes what I have to say – is that ‑ ‑ ‑

KIRBY J:   Well, do not say it again.  I think we understand.  We have read your written submissions.

MR JOHNSON:   Yes.

KIRBY J:   They have been helpful, on both sides.

MR JOHNSON:   Thank you, your Honour.  Your Honour appreciates, of course, that the written submissions were in response to the earlier summary of argument.

KIRBY J:   Yes.

MR JOHNSON:   But, your Honour, just in short by way of closing ‑ ‑ ‑

KIRBY J:   In a sense, the point raised in objection to the first point is a reason why one would not take up the second point in this case, because you would want a case where there was a clearer instance of a request and a persistence in a request than in this case.

MR JOHNSON:   You would want a case where there was something which would have been a common law breach of natural justice and it would need to be a case which was a good vehicle for testing the language of 422B, and those criteria are not here at all.

KIRBY J:   Anything in reply, Mr Karp?

MR KARP:   Only, your Honour, that, in my submission, an applicant does not have to make repeated requests for a witness to be heard or, indeed, for evidence to be taken.  He made one request.  That appeared to have been acceded to by the Tribunal and, as your Honours know, in my submission, the Tribunal reneged without giving any particular reason and without a full consideration of the evidence which may have been given.  May it please your Honours.

KIRBY J:   Thank you.

This is an application by a Bangladeshi national who claims to be a refugee entitled to protection under the Migration Act.  His claim was rejected by the Minister’s delegate, the Refugee Review Tribunal, the Federal Magistrates Court and Justice Stone, exercising the appellate jurisdiction of the Federal Court of Australia.

The Refugee Review Tribunal found that the applicant was a witness without credit.  However, the applicant complains essentially of a breach of procedural fairness.  He says that he wished to call a witness, Mr F; that he made this clear to the Tribunal; the Tribunal did not appreciate and even stated this fact and, accordingly, that he should have a fresh hearing.  These claims were rejected below.

Assuming that the evidence of Mr F might have been material, there was, however, no error in the conclusion of Justice Stone that the applicant failed before the Tribunal to make clear his request that Mr F was to be called as a witness and that he was seeking an adjournment until that could occur.

The other ground argued is not one suitable for the grant of special leave in this case.  In these circumstances, there is no demonstration of an unfairness that requires the intervention of this Court.  We are not convinced that a miscarriage has occurred or that the outcome would be different in this Court, if special leave were granted.

It follows that the application for special leave to appeal must be refused.  The applicant must pay the Minister’s costs.

Adjourn the Court now until 3.30.

AT 1.26 PM THE MATTER WAS CONCLUDED