SZDRY v MIMIA & Anor

[2005] HCATrans 979

[2005] HCATrans 979

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S364 of 2005

B e t w e e n -

SZDRY

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Summons

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 21 NOVEMBER 2005, AT 9.34 AM

Copyright in the High Court of Australia

SZDRY appeared in person.

MS R.A. PEPPER:   If your Honour pleases, I appear for the first respondent.  (instructed by Clayton Utz)

HIS HONOUR:   I think we have a certificate from the Registrar indicating that the second respondent, the Refugee Review Tribunal, submits to any order of the Court save as to costs.

MS PEPPER:   That is correct.  Your Honour, I might just indicate to the Court that we have organised an interpreter, which is the gentleman that you see sitting on your far left.

HIS HONOUR:   Very well.  Would you please stand and let me know your name.

THE INTERPRETER:   Jawad Sarwar is my name, your Honour.

HIS HONOUR:   Are you a court-registered interpreter?

THE INTERPRETER:   Yes, your Honour.

HIS HONOUR:   What is the language that you interpret?

THE INTERPRETER:   Urdu.

HIS HONOUR:   Are you prepared to take an oath or will you make an affirmation?

THE INTERPRETER:   Either.  I am prepared for any.

HIS HONOUR:   I think we might only have the Christian Bible, so it might be best if we make an affirmation.

THE INTERPRETER:   I would be happy with that, your Honour.

HIS HONOUR:   Very well, from the Urdu language to the English language and the English language to the Urdu language.

JAWAD SARWAR, affirmed as interpreter:

HIS HONOUR:   It might be more convenient if we hear first from the lawyer for the Minister so that the issues can be refined.  The lawyer for the Minister has sent a written submission to the Court.  Has that been made available to the applicant?

THE INTERPRETER:   Yes, your Honour.

HIS HONOUR:   I have read the written submission, so there is no need for you to repeat it, as the applicant has it.  Just let me know what you say in elaboration of the written submission, Ms Pepper.

MS PEPPER:   Your Honour, as is set out in the written submissions, really there are several bases upon which we would suggest that the relief sought in the summons ought not be granted.  Firstly, the inadequate explanation for the delay – and I have set out the reasons there.  One would have expected your Honour to have seen some sort of accompanying documentation.

THE INTERPRETER:   Can I request you, please, give a pause so I can interpret.

MS PEPPER:   I do apologise.

HIS HONOUR:   Very well, you might translate to this point.  The applicant has been living in Australia since 1995.

MS PEPPER:   In 1996 the applicant arrived in Australia, on 12 July 1996.

HIS HONOUR:   Does the applicant not have English?  Does she not understand the English language?

THE INTERPRETER:   A little bit, your Honour.

HIS HONOUR:   I see.  Yes, Ms Pepper.

MS PEPPER:   Your Honour, in a sense that is a somewhat technical objection to the relief that is sought, but nevertheless the rules are there for a reason.  There are new rules and obviously it is the Court’s intention that they be complied with insofar as the filing of the necessary documentation accompanying the application for special leave.  Of course, this is an extraordinary conduct of delay, in my submission, on the part of the applicant in bringing her claim to some sort of fruition before the court system in Australia.  More fundamentally, your Honour, is, in my submission, the fact that there was simply no error by the Tribunal in dealing with the applicant’s claims.

HIS HONOUR:   The problem with that submission is that normally applications of this kind if dealt with on the papers are dealt with by two Justices and if dealt with in Court on oral submissions are dealt with by two or three Justices.  Effectively, if your submission were accepted, the final determination in the application, subject to any further appeal, would be made by one Justice.  The Magistrate dealt with the matter substantially on the merits and only came to the objection to competency at the end of his reasons.

MS PEPPER:   That is correct.

HIS HONOUR:   Although this is an invocation of the constitutional jurisdiction of this Court, it is brought within a relatively short time of the Federal Magistrate’s determination of the matter.

MS PEPPER:   That is correct, your Honour, but of course the matter did go on appeal and there was the decision of his Honour Justice Lindgren, who dealt at some length with the issue of whether or not the Tribunal had erred insofar as their identification of this systematic course of conduct which, as I understand it, is the gravamen of the complaint by the applicant. 

Your Honour is quite right in suggesting that it would not be appropriate to make a final determination as to the merits of the substantive special leave application, but nevertheless, in my submission, it is a factor which your Honour quite properly ought have regard to, that is the strength or otherwise of the special leave application, in determining whether or not to exercise the Court’s discretion to allow the special leave application to be reinstated after the deemed abandonment. 

Now, obviously in a particularly strong case one would expect the Court to be perhaps more favourably minded to exercise that discretion in favour of an applicant, but in the present case when one has combined with, in my submission, an inadequate explanation for the delay a long period of conduct of delay on the part of the applicant and then what is, in my submission – given what, in my submission, would be a weakness in the merit of the special leave application, that combined with the other factors that I have referred to would suggest a degree of futility were the reinstatement to be made today in the exercise of the Court’s discretion.

Your Honour, I have set out in some detail – and I am happy to go through that – some of the arguments that the Minister puts forward as to why the special leave application would not, in our submission, or would be unlikely to be granted.  It is quite clear when one reads the decision of the Tribunal that there simply was no error made by the Tribunal upon a proper reading of that Tribunal’s decision.

HIS HONOUR:   I understand all those submissions.  Would it be competent to the applicant in support of an application for special leave to appeal if I were minded to cure the time default to put before the Court in support of the application for special leave to appeal evidence which has not hitherto been provided concerning the delay between the original decision of the Tribunal back in June 1998 and the commencement of the first proceedings before the Federal Magistrates Court?

MS PEPPER:   Your Honour, a couple of responses to that.  Firstly, it would simply be too late to do that here today now.  That would obviously cause some prejudice to the respondent.

HIS HONOUR:   Yes, I was not thinking of it today.  I was thinking of it in the event that I were to cure the time default to have that material before the Court when it considers the matter either on the papers or in an oral hearing.

MS PEPPER:   In my submission, that would not be relevant to the extent that what would be before the Court on a special leave application would be whether or not there was sufficient error demonstrated in the reasoning of his Honour Justice Lindgren in the decision that his Honour handed down on 18 July 2005.  In a sense, the time for explanation of delay will have passed and would not, in my submission, be relevant to whether or not his Honour was in error.  When one reads the decision of his Honour, it is detailed and careful analysis in relation to this issue of whether or not the Tribunal did make a mistake in relation to its description of what constitutes persecution referable back to the Tribunal’s decision and there simply is none, in my submission.

HIS HONOUR:   I was thinking of the submission that you made, correctly, I think, that relief of the kind that is sought is in any case discretionary and a factor relevant to the exercise of the discretion is the very long, even gross, delay which is unexplained.  If this Court thought that the delay was so extreme and unexplained that it would be unlikely that the applicant would succeed in any case to get the writs which she seeks, then that might be a consideration that would weigh with the Court.  As I understand it, your submission is that because this is in the appellate stream of the Court, that no new evidence could be received at this stage.

MS PEPPER:   That is correct, your Honour.

HIS HONOUR:   If it cannot be received in the appeal, it should not be received in the special leave application.

MS PEPPER:   That is correct, your Honour.  The time for putting on that type of evidence would have been, in my submission, when the matter was before the Federal Magistrate, not even before his Honour Justice Lindgren in the Federal Court before the Federal Magistrate.  The issue of discretion was at least certainly raised by the Minister in the Minister’s submission before his Honour Federal Magistrate Lloyd‑Jones.  It certainly has not been addressed, I think it would be fair to say, in any clear sense from the decision of the Federal Magistrate but it certainly was present.

HIS HONOUR:   The Federal Magistrate does not seem to have shown great concern about the question of delay and it does not loom large in Justice Lindgren’s reasons, but it might be a factor that the High Court would take into account.  Ultimate relief in these matters is discretionary, although I notice that the applicant’s complaint about the decision of Justice Lindgren and the Federal Magistrate is addressed to jurisdictional error.  As I understand the authority of the Court, even in such a case the relief does not go as of right; it is still discretionary.

MS PEPPER:   That is correct, your Honour.  Of course, even before one got to the issue of whether or not the relief ought to be granted on discretionary grounds – and perhaps this is a factor of why it does not really appear with any sense of clarity at all from the judgments below – it is because of the very strong substantive reasons why the application would fail or why it was that the applicant has failed before the Federal Magistrates Court, particularly before his Honour Justice Lindgren, namely there simply was no error by the Tribunal when one has regard to the authorities and when one has a proper reading.  Of course, this Court has told us that one ought not go over decisions of tribunals with a fine toothcomb, such as the authority of Wu Shan Liang.  When one has regard to those factors, that is no doubt why the courts below simply did not have to get to the point of discretionary relief.  In my submission, that must be something that this Court ought to have regard to in exercising its discretion to reinstate.

HIS HONOUR:   Can I be quite blunt.  If the Minister chooses a battleground of the merits of the matter both before the Federal Magistrate and before the Federal Court, and if the time default in this Court is relatively small, it seems a trifle precious to prevent the applicant having a decision on the merits in this Court as distinct from a knockout on the basis of a minor time default.

MS PEPPER:   Your Honour, I am just suggesting it is one of the factors that your Honour ought to have regard to when considering whether or not to exercise the Court’s discretion to reinstate.  There is in addition, as your Honour has indicated, the issue of whether or not relief would be granted, given the unexplained delay on discretionary grounds.  There is also the issue of whether or not your Honour is sufficiently convinced by the nature of the explanation that the applicant has provided as to why the rules were not complied with and in light of, as I have said previously, a long and unexplained period of delay by the applicant.

HIS HONOUR:   In the event that I am against the Minister’s submission in respect of the reinstatement of the application, what is your submission as to the order that should be made in respect of the costs?

MS PEPPER:   Your Honour, probably the appropriate order would be that the costs would be the costs in the cause.

HIS HONOUR:   Thank you, Ms Pepper.  Thank you for your written submissions which made it easier to focus on the application in advance of the hearing.

MS PEPPER:   Thank you, your Honour.

HIS HONOUR:   I am going to reinstate the proceedings, so I do not need to hear from the applicant unless she wishes to say something in response to the submissions of counsel for the Minister.

SZDRY (through interpreter):   I would like to request the Court that my case be joined with my husband’s case because I am not independent and I am reliant upon my husband’s case as well.

HIS HONOUR:   Do you know about this application, Ms Pepper?

MS PEPPER:   No, I do not, your Honour.  If I could just have two seconds to look at this.

HIS HONOUR:   I will allow counsel for the Minister to look at the document that you have just handed which apparently relates to the applicant’s husband’s application.

MS PEPPER:   Your Honour, the Minister’s position is this.  This application for special leave is an application brought by the applicant in her own right.  It is not in any way linked with that of her husband and the ground sought to be raised does not in any way have any bearing on the outcome of her husband’s application.

HIS HONOUR:   That is true in part insofar as part of the application relates to what appears to be a recognised social group application concerning the status of women in Pakistan, but part of the application, as I recollect it, relates to the fact that the applicant was married to her husband who was a member of the Shiite minority in Pakistan and the son of a prominent Shi’a person in Pakistan, and that would seem to provide some form of link to the husband’s application.  Whilst not joining them together

as one application, it would seem sensible that they be determined consecutively by the same special leave panel of the Court in case there is some overlap.

MS PEPPER:   Your Honour, as I have previously indicated, the decision of Justice Lindgren was on a quite discrete point that was really referable only to matters raised by the applicant.  They have in no way any bearing on whether or not the success or otherwise of her husband’s application was to be determined one way or the other.  In those circumstances this is a wholly separate claim, it is a wholly separate application, and on that basis it ought to be treated as such by this Court, in my respectful submission. 

As I understand it, the question that is sought in relation to the special leave application is whether or not there was error by the Tribunal in its application of its test for persecution, namely the systematic course of conduct.  That is a test that it applied to facts as found by the Federal Magistrate, as determined by the Tribunal, and then as not challenged on appeal before his Honour Justice Lindgren.  It is a very discrete narrow point that one only has to have regard to the actual text of the Tribunal decision and no findings in relation to her husband.

HIS HONOUR:   The applicant was born in Lahore, Pakistan in February 1973.  She is thus a national of Pakistan.  She arrived in Australia on a student’s visa in 1996.  Subsequently she claimed relief under the Migration Act 1958 (Cth) (“the Act”). She did so on the footing that she was entitled to protection as a refugee. The basis of the claim, as I understand it, was that the applicant suffered a well‑founded fear of persecution by reason of her religion (namely the Shi’a branch of Islam) and membership of a social group (namely a member of a religious minority and as a woman in Pakistan).

The delegate of the Minister refused to grant the applicant relief under the Act. The applicant then sought review of that decision before the Refugee Review Tribunal. That Tribunal, on 22 June 1998, rejected the applicant’s application for review of the decision. It affirmed the decision of the delegate of the Minister. Nearly five years then passed before, in May 2004, the applicant applied to the Federal Magistrates Court for the issue of writs addressed to the Tribunal. The Minister in June 2004 lodged an objection to the competency of that application in the Federal Magistrates Court. This was done pursuant to the terms of section 477(1)(a) of the Act.

On 24 February 2005, the matter then came before Federal Magistrate Lloyd‑Jones.  The Federal Magistrate dealt with the application on its merits, although he mentioned the objection to the competency of the application, being the last consideration referred to in his reasons.  He rejected all of the complaints of the applicant and he dismissed the application.  The applicant then appealed to the Federal Court of Australia.  For the purpose of the decision, that appeal was heard by Justice Lindgren who dismissed the appeal on 27 July 2005.

The applicant then lodged an application for special leave to appeal to this Court.  That application was filed in time on 4 August 2005.  An appearance was lodged by the Minister contesting the application.  A submitting appearance was lodged for the Tribunal. 

The applicant thereafter became out of time for the filing of the written case in support of her application for special leave.  Pursuant to the High Court Rules, rule 41.10.04, the application was thereafter deemed abandoned.  The applicant was notified of this fact by letter from the Registry of the Court on 5 September 2005.  That letter was received by the applicant on 7 September 2005.  The applicant thereupon sought to have her application for special leave reinstated.  That application is the process that is before me today.

The application has been resisted by the Minister.  In essence, the Minister contends that no error is disclosed in the reasons of Justice Lindgren; that there are long periods of delay which preceded the particular delay in this case; and that the application is futile and is bound to fail.  For that reason, it was said, I should not reinstate the application here and now.

For a number of reasons I am not inclined to accede to those arguments.  First, applications for refugee status raise serious concerns, both for the applicant and for the Australian population and for Australia’s conformity with its international obligations.  Normally, in my view, such applications should be dealt with on the merits where this can be achieved without injustice to the other party.  No special prejudice was alleged by the Minister, attributable to the short delay in filing the written case.

Secondly, the application is brought to this Court on a ground asserting jurisdictional error on the part of the Refugee Review Tribunal.  It is presumably this fact that explains the willingness, both of the Federal Magistrate and of Justice Lindgren in the Federal Court, to address the merits of the application rather than to deal with the Minister’s objection to the competency of the belated proceedings before the courts.  If jurisdictional error is demonstrated, the purported decision of the Tribunal is not a decision according to law.

Thirdly, the delay that is in issue here, namely that in prosecuting the special leave application, is relatively short.  It is explained, at least in part, by reference to the applicant’s contention of a serious illness in her family, her own illness and that of her children.  In these circumstances, and especially taking into account the way in which the matter has been contested by the Minister before the courts, it seems to me just that the special leave application should be restored and that the applicant should have a period of 14 days within which to file her draft notice of appeal and written case in support of her special leave application.

During the hearing of the application, the applicant informed the Court that there was a concurrent proceeding brought on the part of her husband.  That proceeding, which has been prosecuted separately, has reached the stage of the preparation of the index to the application book.  The applicant asked that her application be consolidated with that of her husband.  This was opposed by the Minister.  I am not inclined to deal with the application now.  There is no formal process seeking consolidation.  There is no argument or material before me as to the reasons for, and against, such consolidation. 

It is true, as the Minister’s counsel said, that the application brought by the applicant has hitherto been expressed and treated as a separate one, individual to herself.  On the other hand, if there is overlap, it may be sensible for the Registry to ensure that the two applications come before the same special leave panel, provided that does not delay the prosecution of the respective applications in the Court list.  However, that would be a matter for the Registry and for any representations which it receives.  I would not make any order now consolidating the two proceedings.

The orders which I make are:

1.        Reinstate the application brought by the applicant for special leave to appeal from the judgment of the Federal Court of Australia constituted by Justice Lindgren dated 27 July 2005;

2.        Order that the costs of the proceedings today be costs in that application; and

3.        Direct that the applicant file and serve her draft notice of appeal and written case in support of her application for special leave by 4.00 pm on Monday, 5 December 2005.

Is there anything you wish to say in respect of those orders, Ms Pepper?

MS PEPPER:   No, your Honour.

HIS HONOUR:   Thank you very much.  Is there anything that the applicant wishes to say in respect of the orders?  Would you tell her that I have extended the time that she can bring her application, but she must file her written case and draft notice of appeal by Monday, 5 December at 4.00 pm.  Would you translate that, please?  Does the applicant understand those orders?

THE INTERPRETER:   Yes, your Honour.

HIS HONOUR:   The applicant should be told that in the event of default it would be very unlikely that she would have another extension of time, having regard to the history of delay in these proceedings.

THE INTERPRETER:   Yes, your Honour.

AT 10.20 AM THE MATTER WAS CONCLUDED