SZHDC v MIMA & Anor

[2008] HCATrans 267

[2008] HCATrans 267

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S286 of 2006

B e t w e e n -

SZHDC

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 AUGUST 2008, AT 9.54 AM

Copyright in the High Court of Australia

MR D.R. SULAN:   If it please the Court, I appear for the applicant.  (instructed by the applicant)

MS M.N. ALLARS:   May it please the Court, I appear for the respondent.  (instructed by DLA Phillips Fox)

GUMMOW J:   We will hear from you first, Ms Allars.  I should say there is a submitting appearance from the Tribunal, which is the second respondent.  Why should we not grant special leave in what seems to be a bit of a muddle in terms of difficult statutory construction points?

KIRBY J:   There are all these decisions.  They seem to be all over the place in the Federal Court.

MS ALLARS:   Your Honour, we say that the decisions are quite consistent on this particular issue.  We say there is no issue of principle raised here.  The applicant now seeks to argue that section 425A(2) rather than subsection (3) applies where there is a rescheduling of a hearing under section 426A(2) and it is on that basis that we say there is no principle arising.  However, it is to be noted that this Court in SZDQO refused special leave in relation to the precise question that now arises in connection with subsection (3).

KIRBY J:   That may be so, but in this case we have the benefit of the submissions of Mr Sulan who has connected all of these cases.  I am not sure what was before the Court in the earlier case, but that is the matter that is in my mind, that different judges of the Federal Court are taking different approaches to this question.  I counted up seven different approaches.  That seems to call for our intervention to lay down the rule and then they will all conform.

MS ALLARS:   Your Honour, the most recent authority is the Full Federal Court decision in SZFML, a decision of their Honours Justices Spender, French and Cowdroy, where the approach taken by his Honour ‑ ‑ ‑

KIRBY J:   Who was the second judge you had mentioned there?

MS ALLARS:   His Honour Justice French.

KIRBY J:   I see.

MS ALLARS:   Yes.  The same approach was taken in that Full Court decision as was taken by his Honour Justice Conti in SZDQO where special leave was refused in relation to subsection (3) and that is that section 425A(3) is not picked up and does not apply where the Tribunal reschedules.  So we think there is no conflict in the decisions of the Federal Court.

KIRBY J:   You are not dripping with factual merit in this case.  I mean, the man was sick and that was accepted.  It was postponed but relisted at the earliest possible opportunity.  I think it can be accepted that he did not get the notice.  We have had cases in recent months where the Minister has not proceeded with cases of this kind, the present Minister.

MS ALLARS:   We accept that there is an implied duty, not a duty under section 425A(2), but an implied duty given the statutory scheme to give reasonable notice.  Her Honour Justice Stone took the view on this, which is a factual issue, that the notice was reasonable.  That does not raise any question of principle.  A letter was sent.  The period of time was six days.  It is to be noted that in SZDQO the period of time was 10 days.  It is a question in each case turning on the facts and there are a number of aspects to the circumstances of this case which indicated that the applicant was able to make contact with the Tribunal by facsimile and would have been able to look in his post office box in order to ‑ ‑ ‑

KIRBY J:   That might be the ultimate conclusion, but the question at this stage is whether it invites attention by this Court.  I mean, on the one hand one can understand the utility and need for pretty strict rules, otherwise these things spin out and they just go on forever, but on the other hand our obligations under the Refugees Convention protocol are very important international obligations and one has to read the rules in the light of not frustrating the fulfilment of those obligations.  Then you look at the Federal Court and they seem to have different approaches.  You then ask yourself, why not have a look at this?

MS ALLARS:   If your Honour is referring to special leave question B rather than special leave question A, the respondent has accepted that there is an implied duty to give reasonable notice.  Thereafter it is a factual question for the Court and there is no question of principle raised in relation to special leave question B.  It is a factual issue determined by the Federal Magistrates Court and then by her Honour Justice Stone.

GUMMOW J:   Yes, but history teaches that if you carve out and throw away some parts of cases, you grant the leave and then they come back and haunt you and it all gets very difficult.  Anyhow, the factual debate is not very complex.

MS ALLARS:   That is correct, your Honour.

KIRBY J:   We have good counsel before us, good submissions.  It sounds like a good day.

MS ALLARS:   Your Honour, it might be more interesting if one could introduce fresh factual material, but all we have is what is there before the Court.

KIRBY J:   Do not try to put poison in the well, not in the High Court.

MS ALLARS:   It appears to us that there is no question of legal principle involved in question B.  Those are the submissions of the respondent, your Honours.

GUMMOW J:   Thank you, Ms Allars.  Mr Sulan, where is your draft notice of appeal?

MR SULAN:   Your Honour, as it is, it is absent, actually, unprepared.

HEYDON J:   What about page 40?

KIRBY J:   You need an extension of time in this case, do you not?

MR SULAN:   That is correct, your Honour.

KIRBY J:   There is an affidavit, which I take it you read, of Jie Zhang which is affirmed 21 August 2006.  Page 38.

MR SULAN:   That is correct, your Honour.

GUMMOW J:   You have an amended application for special leave, I see.

MR SULAN:   I do.  I could turn that into a draft notice of appeal.

HEYDON J:   What is wrong with the one on page 40?

MR SULAN:   It may be sufficient.

KIRBY J:   I only read the amended notice.  I do not know if Ms Allars has any objection to our extending time and acting on the amended application.

MS ALLARS:   The extension of time is not opposed, your Honour.

GUMMOW J:   Thank you.

MR SULAN:   Could I have a short period in which to draft an amended notice of appeal?  Would that be possible?

GUMMOW J:   Well, wait a minute.

KIRBY J:   What, like half an hour?

GUMMOW J:   Anyhow, you want to turn the grounds in the amended application filed on 17 July into your notice of appeal, do you not?

MR SULAN:   That is correct, your Honour.

GUMMOW J:   That can be done, if that is what you wish.  They seem in proper form.

The necessary extension of time is granted.  There will be a grant of leave and the grounds of appeal will be those taken from the amended application for special leave filed on 17 July 2008.  The case will be a one‑day case.

AT 10.02 AM THE MATTER WAS CONCLUDED