SZEPZ v MIAC & Anor

[2008] HCATrans 91

[2008] HCATrans 091

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S249 of 2006

B e t w e e n -

SZEPZ

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 FEBRUARY 2008, AT 3.54 PM

Copyright in the High Court of Australia

MR I.G.A. ARCHIBALD:   May it please the Court, I appear for the applicant.  (instructed by the applicant)

MR G.T. JOHNSON:   May it please your Honour, I appear for the first respondent.  (instructed by Sparke Helmore Lawyers)

GUMMOW J:   There is a submitting appearance from the Tribunal, the second respondent.  Is there the similar problem with the title of the first respondent?

MR JOHNSON:   Yes, your Honour, I think there is.  I ask that that be changed to the Minister for Immigration and Citizenship.

GUMMOW J:   Thank you, that should be done.  Yes, Mr Archibald.

MR ARCHIBALD:   Your Honours, this application concerns the correct construction of the words “the Tribunal” in section 424A of the Migration Act.  It would appear to be the first time that the particular point has come before this Court.  It raises the issues as to the extent to which a secondly ‑ ‑ ‑

GUMMOW J:   Section 424A seems to generate a vast amount of litigation.

MR ARCHIBALD:   Indeed, your Honour.  But, your Honour, this particular issue raises the question as to the extent to which a secondly constituted tribunal can dispense with the mandated procedural fairness requirements within Division 4 of Part 7.

GUMMOW J:   Yes, what it seems to come to, Mr Archibald, is that looking at pages 80 and 81 your task would be to persuade that the Full Court was wrong in what it says at the bottom of page 80 there:

there is nothing in the scheme of Part 7 of the Act to suggest that the steps required by s 424A(1), as explained in s 424A(2), must be taken at any particular time.  So long as an applicant has been given information that the member of the Tribunal –

et cetera.  That would be the crux of it, would it not?

MR ARCHIBALD:   That is correct, your Honour.

GUMMOW J:   Well, what is wrong with that as a matter of sense, commonsense, one can intrude that?

MR ARCHIBALD:   First, your Honour, if I could take you to Division 3 ‑ ‑ ‑

GUMMOW J:   I mean, the object is adequate decision making, is it not, by the Tribunal on a record adequately constituted?  Now, the record before it is adequately constituted if these steps are taken, even though there is some sequential activity involved in it.

MR ARCHIBALD:   Well, your Honour, the construction put forward by the applicant starts with how the Tribunal is to be constituted under sections 421 and 422.

GUMMOW J:   I know, but am I wrong in seeing that as the objective of 424A, namely, that the record is to be constituted in this way, in this adequate way?  At the time of the decision it got the material.  What is wrong with that idea as what the Act is directed to?

MR ARCHIBALD:   Well, your Honour, the Act is directed to the Tribunal providing the information, and on the construction of the respondent the Tribunal can include a previous presiding member whose decision has been set aside.

GUMMOW J:   Yes.

MR ARCHIBALD:   In my submission, there is a considerable risk of unfairness in that, and if you have a statutory mandated requirement ‑ ‑ ‑

GUMMOW J:   Why?

MR ARCHIBALD:   Well, for example, your Honour, if on a first decision there had been a 424A letter and an applicant had responded to that letter, and the first tribunal decision had been set aside for another reason, and an applicant is under the impression that his response to the letter had been accepted, he has no way of knowing that the information is seen by the second tribunal as being something that could be used against him.

The scheme of the Act, your Honour, is that, in my submission, that the Tribunal is constituted by a single member and then envisioned for the single member then gives his own consideration of the information and provides it.  The Act does not foreshadow that by virtue of the privative clause a decision of the first tribunal would ever be set aside or challenged, and yet on the construction of the respondent, the phrase “the Tribunal” is construed to include, not just the single member who makes the second decision, but the previous member whose decision has been quashed, and that, in my respectful submission, was never contemplated by the Act.

The particular decision in the court below, your Honour, has had a ripple effect in other cases in the Federal Magistrates Court where what is happening these days, your Honour, is that tribunals on remission are dispensing with the 425 requirement to provide a hearing on the basis that the hearing has already been provided by the first tribunal, hence there is an unease and tension between the 425 requirement and the construction which was found for in the court below.

In my respectful submission, your Honour, if this decision stands the only possible way in which an applicant might be able to say that a second tribunal on a remitter is obliged to give him a hearing is if he can somehow say that new issues had arisen since the first tribunal decision.  There is a case referred to in the authorities, your Honour, of SZILQ, where the federal magistrate upheld the decision of the Tribunal not to hold a second hearing, but on appeal before Justice Buchanan in the Federal Court his Honour followed the reasoning of this Court in SZBEL, to look at this issue of was there a new material which arose after the first tribunal decision, and his Honour used the words “additional element”.  That appears at page 104, your Honour, of the applicant’s authorities book.

But, in any event, your Honour, apart from that avenue where something new arises, the logic of the decision below is that once the first tribunal has complied with 424A and 424 and 425, save for that new issue point there is a real risk of unfairness in that no further hearing or 424A obligation is required.  In my submission, your Honour, this is an appropriate case for the High Court to look at in that there is a lot of authority, your Honour, to the effect that if a first decision is quashed, as occurred in this case, that the jurisdiction is considered not to have been exercised, there has been a failure to exercise the jurisdiction entrusted to the Tribunal, and yet what is happening, your Honour, is that out of the jurisdiction which has not been exercised, somehow the second tribunal is, as it were, plucking out a procedure and then relying on that procedure for the purposes of the second exercise of the jurisdiction.

In my submission, your Honour, this is a case where it is appropriate for the High Court to look at that issue in terms of there is legal theory as to the absolute theory of invalidity of a quashed decision and the relative invalidity of a quashed decision, but there is very little authority on – if you have a quashed decision, whether or not it is absolutely quashed or relatively quashed, can some procedure from that first decision still have any relevance, and this case is an appropriate vehicle for this Court to look at it.

GUMMOW J:   What do you say on the circumstances of this particular case though?  Going back to page 81 to paragraph 43 there:

Before the Second Decision, the appellant had, in fact –

et cetera, and had commented.

MR ARCHIBALD:   Your Honour, the ‑ ‑ ‑

GUMMOW J:   No case that he did not understand why it was relevant, et cetera.

MR ARCHIBALD:   That is a reference back to – prior to the first decision, so there is no other suggestion that it was given in writing prior to the second decision.  In SAAP, your Honour, at paragraph [77] there is authority to the effect that even if it is raised in a discussion in the review hearing it is still not sufficient compliance with the section. 

GUMMOW J:   Thank you.  Yes, Mr Johnson.

MR JOHNSON:   Yes, your Honour.  Your Honour, before I come to what I submit is the substance of the matter I would like to dispose of two red herrings, if I may say, with respect.  The first is my friend’s suggestion that the present Full Court decision has had a ripple effect, which he then describes in terms of the Tribunal dispensing of hearings, and in some cases dispensing with hearings upon remittal, and the suggestion is that this – well, my friend’s suggestion is that this case is a good vehicle to look at that.

GUMMOW J:   To put a stop to it.

MR JOHNSON:   Well, yes.  Your Honour, plainly it is not because in this case there was a further hearing conducted by the reconstituted tribunal, and that occurred on 16 August 2004.  It is specifically referred to in the federal magistrate’s reasons at page 45 of the book about line 35.  So even if it was contended that that was a problem, or arguably a problem, at least in some cases, that is not a question which arises in this case.

The second matter which I would like to deal with at the outset is my friend’s brief mention of there being issue as to reconstitution and how the Tribunal was reconstituted, and your Honours will have noticed in the written submissions that my friend devoted some attention to that.  Now, it is important to note, in my submission, that the Full Court in its decision noted in paragraph 30 that no question was raised as to the validity of the reconstitution.

GUMMOW J:   Now, just a minute.

MR JOHNSON:   That is on page 79 of the ‑ ‑ ‑

GUMMOW J:   There is a haze of numbers here.

MR JOHNSON:   Yes, yes, the paragraph numbers curiously have not come through.

GUMMOW J:   It is page 79?

MR JOHNSON:   Page 79 of the application book.  The first new paragraph on that page down at line 24 commencing ‑ ‑ ‑

GUMMOW J:   “No question has been raised”.

MR JOHNSON:   That is right.  Then when one goes to the paragraph numbered 43, which your Honour Justice Gummow briefly visited before -that is on page 81 of the application book - the court concluded that it was:

not necessary to determine whether or not the Tribunal was reconstituted under s 422.

So that is an important matter to note as well, that if there is any doubt about the ambit of the reconstitution provisions this is not a good vehicle to explore that.  I hasten to add that in the respondent’s submission the powers of the Tribunal to reconstitute are very wide and that there would have been a power here under section 422 at least, but the question does not arise.

Now, to come to what I have described as the substance of the matter.  As your Honour Justice Gummow observed, the ultimate question probably is that which is caught up in that sentence at the bottom of page 80 and the top of page 81, and that in turn is enlightened by the considerations that the Full Court sets out in paragraph 39 at the top of page 12.

“The Tribunal”, as that expression is used in the course of the Act, is the Refugee Review Tribunal, and it is so defined in section 410 of the Act, and the Refugee Review Tribunal is the body which, as SAAP tells us, would be the recipient of any constitutional writ.  It is the Refugee Review Tribunal to which application is made under the Act, under section 412.  It is the Refugee Review Tribunal, not any particular member of it or any individual as persona designata, which has the duty described in section 414 to review the RRT reviewable decision, and to exercise the powers and decide the matter under section 415 of the Act.  The reconstitution provisions, and there is no dispute in this case ‑ ‑ ‑

GUMMOW J:   I do not think we need to trouble you any more, Mr Johnson.

MR JOHNSON:   Thank you, your Honour.

GUMMOW J:   Yes, Mr Archibald.

MR ARCHIBALD:   Yes, your Honour.  Your Honour, my friend’s points in relation to section 425 now being dispensed with is irrelevant, your Honour.  The reason for that is that this case is being used as authority to dispense with the 425 hearing.  It is the direct authority that the magistrates are using and the tribunals are using and it is the only authority, your Honour, to which they keep coming back, so that this is a highly appropriate vehicle to deal with this practice.

Secondly, your Honour, my friend’s point in relation to whether there was dispute as to whether the Tribunal had been validly reconstituted, that is also not relevant.  That discussion in the Federal Court simply arose because the Federal Court was passing comments on whether the initial court which quashed the Tribunal decision could direct the Tribunal to be reconstituted.  No one doubted that the Tribunal had been reconstituted.  There was an issue as to whether it was constituted under section 421 or under section 422.  The applicant says 422 is totally non‑applicable because it applies where a member ceases to be a member of the Tribunal or is unavailable at the place.

Similarly, your Honour, my friend’s point in relation to application being made to the Tribunal and the Tribunal having the duty to review, all of that, your Honours, is dependent on what is the meaning of the word “tribunal”.  That is the critical point.  In my submission, it is clear from sections 421 and 422 and the scheme of the Act and the subjective considerations of 424A that the Tribunal is always constituted by a single member, and that ‑ ‑ ‑

CRENNAN J:   What about section 415, the obligation to conduct a review is on the Tribunal?

MR ARCHIBALD:   Indeed, your Honour, but it is on the Tribunal as constituted by a single member.  Yet what my friend is saying, your Honour, is that some ‑ ‑ ‑

GUMMOW J:   I think it is implicit though perhaps that you want to approach this problem from the situation where there is a sequence of tribunals.  In fact, there is only one body.

MR ARCHIBALD:   Your Honour, the Act does establish a tribunal consisting of the principal member and the other members, your Honour, but the Act clearly says:

(1)For the purpose of a particular review, the Tribunal is to be constituted . . . by a single member.

GUMMOW J:   It does not need more than one, that is what they are saying.

MR ARCHIBALD:   It says constituted by a single member, so that ‑ ‑ ‑

GUMMOW J:   I know, I know, but sometimes the Administrative Appeals Tribunal has to be constituted by three members.  That is what was in the draftsman’s mind.

MR ARCHIBALD:   Yes, your Honour.

GUMMOW J:   There are other Commonwealth laws dealing with review which require more than a single member to make it quite clear that one is enough ‑ ‑ ‑

MR ARCHIBALD:   Well, your Honour, it does use the phrase “particular review” so it is directing what the Tribunal is to comprise for the purposes of that particular review, and so, in my submission, that construction is to be preferred in the interests of avoiding the risk of unfairness to the applicant.

GUMMOW J:   Yes, Mr Archibald, thank you.

There is insufficient doubt as to the correctness of the reasoning by the Full Court in paragraphs 37 to 43 of its decision to warrant a grant of special leave.  Special leave is refused with costs.

The Court will now adjourn to 10.15 am on Tuesday, 26 February 2008 at Canberra.

AT 4.14 PM THE MATTER WAS CONCLUDED