SZHHK & Anor v MIMA & Anor

[2008] HCATrans 169

[2008] HCATrans 169

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S428 of 2006

B e t w e e n -

SZHHK

First Applicant

SZHHL

Second Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 APRIL 2008, AT 12.03 PM

Copyright in the High Court of Australia

MR R. NAIR:   If the Court pleases, I appear for the applicants.  (instructed by Burn & Swift)

MR J.D. SMITH:   May it please the Court, I appear for the first respondent.  (instructed by Blake Dawson)

GUMMOW J:   There is a submitting appearance from the Tribunal.

MR NAIR:   What I propose to do, your Honours, is to take your Honours to some documents which ground the facts on which the applicant’s denial of statutory procedural fairness is based and which can also fairly be said to indicate the broad public importance of these issues, if I might paraphrase it as the special leave importance.  The relevant documents are attached to the applicant’s summary of argument and I start, rather than in the application book, if I might take your Honours to page 11 which is the beginning of these documents which I attached.  The numbering is at the bottom right‑hand corner.  Have your Honours got them?

GUMMOW J:   Yes.

MR NAIR:   Pages 11, 12, 13, 14, those four pages comprise the application for review to the Refugee Review Tribunal.  It is important, in my submission for your Honours, that this application is divided into a number of sections and the sections are clearly separated by quarter‑inch, half‑inch black band. The first section asks for details of the persons included in the application.  The second section asks for information and details about the main applicant, applicant number one.  These are on page 11.

We then go to page 12 and this is of importance.  The first section clearly states it is information about the residential address of the applicant in Australia and the first applicant here has provided that address and relevant details.  Following that is another section and that section is headed:

Do you have an adviser you authorise to act for you in relation to this application?

And the applicant has said, “Yes”, ticked the box and provided relevant details of an adviser; adviser authorised to act for her in relation to this application.  Then, your Honours, we come to a really important section.  That is on page 13.  On page 13 the section basically asks a question, very clearly stated:

Where do you want us to send correspondence about your application? (tick one box only)

The form clearly provides for only one of three answers to be given and that is, “My residential address in Australia”, there is a box, “My mailing address”, and your Honours will note there is nothing completed in regard to that, or, “My Authorised Recipient”.  Your Honours will see that the only answer in that section, the only box ticked is, “My residential address in Australia”.  The box, “My Authorised Recipient” is not ticked.

HEYDON J:   What about the next box?

MR NAIR:   Yes.  Now, before we go to the next box, your Honour, as your Honour has asked, your Honours will note that the two boxes below are not boxes that are part of the first set of three boxes.  They are offset to the right.  They are in fact subsidiary questions presumably to be answered if “My Authorised” box is ticked.  “My Authorised” box was not ticked.  However, below the words, “My Authorised Recipient” the following sentences appear.  One sentence is:

You can nominate someone to receive correspondence in connection with the review.  This person is known as your Authorised Recipient.

That has been emphasised, the term, “Authorised Recipient”.  Now, the applicant has not ticked the box.  She has not nominated an authorised recipient.  The next sentence is:

If you nominate an Authorised Recipient, all correspondence will be sent to this person.

Well, she has not ticked the box, “My Authorised Recipient”.  Then it continues in bold:

If you have an adviser but you nominate another person to be your Authorised Recipient, the Tribunal will not send correspondence to your adviser.

Your Honours will note that she has provided details of an adviser in the preceding section.  Then it goes to a following paragraph.  There is a clear space and what the clear space has on top of it is:

I authorise the following person to receive correspondence in connection with the review –

There are two boxes below that, “my adviser”, and she has ticked “my adviser” or “another person”, obviously she has not ticked that and below that are a number of boxes for the “Name of Authorised Recipient”.  Clearly, one way of interpreting this and a very fair way of interpreting this form is, if I am to read it, I do not tick “Authorised Recipient”.  I have not nominated an authorised recipient, however, I have nominated someone other than my adviser to receive correspondence, that person being myself, the applicant, so what do I do?  I also would like correspondence to go to my adviser but in no way have I indicated that my adviser is my authorised recipient.

GUMMOW J:   What is your reply to the submission by Mr Smith in his supplementary argument?

MR NAIR:   The 441G point?

GUMMOW J:   Paragraphs 6 and following.  Focusing, among other things, upon section 441G.

MR NAIR:   Yes.  The applicant’s answer is simply this.  Section 441G has absolutely no operation in this case simply because, as it starts with line 62, I imagine:

(1)If:

(a)a person (the applicant) applies for review of an RRT‑reviewable decision; and –

and the applicant here has applied for review, so that is okay –

(b)the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) ‑ ‑ ‑

GUMMOW J:   Yes, we can read it, but what do you make of it all?

MR NAIR:   What we say is she has not nominated an authorised recipient and therefore section 441G has no application because it does go on to say that “the Tribunal must give the authorised recipient”, but in this case the only one authorised by her is herself.  There is no other authorised recipient.

GUMMOW J:   Yes, go on.

MR NAIR:   So, your Honours, if I could carry on with the form and then I will come to a couple of letters which might further answer your Honour’s questions, if I can do that quickly.  We say she has not nominated anyone other than herself.  She has clearly done that.  That is obviously very important in the context of statutory procedural fairness because the Tribunal is obliged to ask her what address she wants an invitation to be sent to. 

If I can then take your Honours to a number of letters starting at page 16 of my summary of argument.  The first of it is a letter dated 21 July 2005.  It is not in the application book, your Honour, it is in the ‑ ‑ ‑

GUMMOW J:   I realise that.  Go on.

MR NAIR:   It is page 16, a dated letter from the Refugee Review Tribunal dated 21 July 2005 and it is sent to the adviser, Mr Zahirul Hoq Mollah.  It invites the applicant to a hearing on Friday, 19 August 2005.  The letter starts with saying that:

As the authorised recipient, all correspondence on this case will be sent to you . . . Please note that [the applicant] has not been sent a copy of this letter.

There are two pages of that letter, 16 and 17.  I take you to page 19 of the annexures, your Honours.  Your Honours will note it is again a letter from the RRT to Mr Zahirul Hoq Mollah but this particular letter says, “Please note that [the applicant] has been sent a copy of this letter”.  So the applicant has also been sent a copy of this letter.  It is important to note that the letter is dated 23 August 2005 and in this letter the letter says that she did not attend the hearing on 19 August and therefore – yes.  Then it goes to the last paragraph and it says, and if I might quickly read it:

The Tribunal understands that you had requested ‘correspondence about [your] application’ to be sent to your residential address; and that the letter of 21 July 2005 was not in fact sent to your residential address.  This was because you had also requested in the ‘Application for Review’ form that all correspondence about your application be sent to your ‘authorised recipient’; and the form went on to advise that if you nominated an ‘authorised person’ then ‘all correspondence [about your application would] be sent to [that] person.’

First and foremost, she did not nominate an authorised recipient.  Two, the legislation does not talk about authorised persons.  I am not quite sure where that term in quotes come from an “authorised person”  That is not correct.  Then on the following page the Tribunal says that, “Yes, we are prepared to look at any further evidence” – the last line:

if you choose to issue further evidence and submissions to the Tribunal in relation to your claim, and prior to it being ‘handed down’, he will take that evidence and or submissions into account ‑ ‑ ‑

GUMMOW J:   Yes.  What is wrong with that?

MR NAIR:   What is wrong with that, your Honour, because that comes ‑ ‑ ‑

GUMMOW J:   We have to try and get to the merits.  We are going around and around with dates and letters and so on, but what are the merits?  You are on a special leave application.

MR NAIR:   Yes, the merits, your Honour.  This letter is dated 23 August.  The following letter which is on page 22 is dated 24 August, one day later and it is not sent to her directly.  It is sent to her authorised recipient, as the Tribunal claims, who is not the authorised recipient and it says, look the decision has been made.  She sent a letter on the 23rd saying, “Look, if you want to tell us some more things, we will look at it”, but the letter on the 23rd, a day later, says the decision has been made.  If your Honours look at the application book your Honours will note that the decision by the Tribunal was actually signed on that date, 24 August.

HEYDON J:   Your client did not get that last letter.  Your client on 27 August replied to the letter of 23 August and did not supply any further information, did not supply any evidence or submissions which might be taken into account.

MR NAIR:   That is true.  The Tribunal received a letter of 27 August and that letter does not indicate that she had received the letter of the 24th, and it is also true that she did not provide any further evidence or submissions.  What she did was ask ‑ ‑ ‑

GUMMOW J:   What does she now say she would have provided?

MR NAIR:   She does not say and she has never said that she would have provided any evidence or submissions in writing.  What she says and I understand said in front of the federal magistrate was she wanted the opportunity to appear before the Tribunal and one can appreciate ‑ ‑ ‑

HEYDON J:   To say what?

MR NAIR:   In support of her claims.

GUMMOW J:   To say what?

MR NAIR:   I do not think she was pressed at any length about that and I do not believe there is much evidence about what additional information she would have provided to the Tribunal because ‑ ‑ ‑

GUMMOW J:   If you come here on a special leave application, you need to be able to point to something substantial, you see.

MR NAIR:   Yes, your Honour, I have come here on the thing, yes, but I have not met this client.  I am acting for her pro bono.

GUMMOW J:   I understand all of that.

MR NAIR:   Yes, your Honour.  What she would have said, I imagine, what she would have attempted to have said or what she would have said was that she meets the definition of a refugee that she was persecuted or had a well‑founded fear of persecution in her home country and provided details of that if and as and when put to her by the Tribunal.  I mean, if relevant issues were raised by the Tribunal, which is for the Tribunal to raise, presumably she would have attempted to answer the questions.

The point that we rely on was she was not invited to that hearing and that is what the statute requires.  As your Honours would be well aware, there is no automatic right to hearings before administrative tribunals.  They can operate in a number of ways, but here we do have statutory procedural fairness which says you have this important right and one would expect that the reason that the applicant has that important right is this is an applicant who might not know the complex law and what the relevant issues are and to put it on paper will require not only an understanding on her part or, at the very least, a very clear understanding on the part of her adviser, which is not often the case, or always the case, but also an understanding of all relevant issues.

This is why applicants choose to go before the Tribunal and have the Tribunal clearly identify to them the relevant issues, your Honours.  This opportunity was simply denied her.  I mean, I cannot tell you specifically what else she would have said.  With respect to the Tribunal – if I might use the word – the cavalier fashion in which you write a letter dated 23 August inviting submissions – well, in effect inviting submissions – and then write a letter on the 24th saying, “No, I’ve made a decision” and it may well be that the applicant received that letter some time after her letter of the 27th but the frame of mind in which a letter such as that of the 24th would put an applicant would not be such as to encourage her to provide submissions, quite the contrary.

If I might, for the sake of completeness, your Honours, then take you to page 27 where the Tribunal says, “No, we will not reschedule the

hearing, as you have requested but if you want to submit further material and if we think it is appropriate we will consider offering you a further hearing or we will consider the material”.  That is on 29 August.  On 13 September, which is at annexure 29, the Tribunal writes and tells the applicant, “We have made the decision”.

Your Honours, I do not want to say much more than I submit that there was a clear failure to invite the applicant as mandated, a very clear failure of section 425.  The importance of that is the way this form is phrased.  This is the general importance.  This form is the means, or one of the means, by which the Tribunal undertakes to meet its statutory obligation to afford the applicant in the general circumstances the opportunity to appear directly before the Tribunal.

In that context it is extremely important that the Tribunal inform itself of the correct and proper address to which the invitation has to be sent.  Here the applicant did provide the correct address and the Tribunal simply went about misinterpreting the answers to its own questions.  The issue of how a Tribunal or a decision‑maker carries out its duties as mandated by statutory procedural fairness is really an important issue and that is what this issue concerns.  This is a further issue and ‑ ‑ ‑

GUMMOW J:   The red light is on, Mr Nair.

MR NAIR:   I am sorry, your Honour.  Thank you, your Honour.

MR SMITH:  Your Honour, with respect to the first issue, which is the failure, or the purported failure, to invite the applicant to appear before the Tribunal, the answer is, as given by Federal Magistrate Smith in his reasons for decision, it was not addressed by Justice Nicholson on appeal because it was not raised on appeal.

GUMMOW J:   Where do we see that, by a federal magistrate?

MR SMITH:  At page 22 of the application book.  His Honour there, in paragraphs 29 through to 32, considered the procedural requirements of an invitation to appear required by section 425 and, in particular, considered the impact of section 441G.  That provision is brought into operation by the fact that in the application to which Mr Nair has brought your Honours’ attention, the applicant gave written notice of both the name and the address of Mr Mollah, as well as indicating that he was authorised to receive correspondence in connection with the review.  In those circumstances the Tribunal is obliged to write to him, instead of the applicant, in fulfilling its procedural obligations under Division 4 of Part 7 of the Act.  For that reason, there was a proper invitation and that obligation was complied with.

The next issue is whether then the discretion that arose under section 426A, because of the failure to appear at the date and time and place scheduled in that invitation, was properly exercised.  Can I go immediately to the question raised now in light of the Tribunal’s letter of 24 August, that is, the letter indicating that the Tribunal had made its decision and would hand down its decision in the middle of September, which letter followed immediately after the 23 August letter. 

This issue was not raised in the courts below and as a consequence perhaps there was no evidence, firstly, that the applicant had ever received that letter.  Certainly it was not sent to her, on the face of the document, nor was she aware of it by means of some communication with Mr Mollah.  In fact, it appears from her evidence, which is in the supplementary application book, that the only real communication that the primary applicant had with Mr Mollah was initially at the outset of the application to the Tribunal and subsequently after she had received a copy of the letter that he had sent to the Tribunal and signed on her behalf on 27 August.  So there could be no inference that the applicants were somehow misled or denied an opportunity to present further evidence and thereby obtain an opportunity to have a hearing because of that letter; they were simply unaware of it.

As to the balance of the consideration of discretion by the Tribunal, once again the answers are found in Federal Magistrate Smith’s reasons at page 23 and over onto page 24, which were accepted by Justice Nicholson as correct.  His Honour adopted orthodox principles where such a broad discretion is enlivened in the Tribunal, namely, that the Tribunal in exercising it has to consider all the information before it and, in particular, in this case any requests for rescheduling and whatever information explains that request.  Further, his Honour went on to say that questions of fairness must play some part in the exercise of the discretion.

In this case the Tribunal clearly considered a number of relevant matters; firstly, that the applicant had in her application asked for correspondence to be sent to her, and that must be the reason why it wrote to her as well as to her adviser after she had failed to appear at the hearing.  Secondly, it was clear that after Mr Mollah had written to the Tribunal on behalf of the applicants that it had considered the explanation offered in that letter, namely, that she did not receive the letter, because in its letter of 29 August the Tribunal referred to that letter.

Also, questions of fairness were considered and put into operation by the Tribunal in both of its letters by offering the applicants the opportunity to put further evidence forward noting, as Federal Magistrate Smith found critical in his decision, that it put her on notice of the patent inadequacy of the information that it had currently before it, which was only that contained in the protection visa application.

GUMMOW J:   We do not need to hear any more, Mr Smith.

MR SMITH:  If your Honour pleases.

GUMMOW J:   Yes, Mr Nair.  One of the points that is made is that Federal Magistrate Smith has dealt comprehensively with some of these issues.  Even if they were not reagitated in the Federal Court, you would have to overcome what Federal Magistrate Smith said if you were to have an appeal here and be allowed to argue these points that were not raised in the Federal Court.

MR NAIR:   If they were not raised in the Federal Court, your Honour?

GUMMOW J:   Yes.

MR NAIR:   I would submit they were in fact raised in the Federal Court.

GUMMOW J:   Whether they were or they were not, you would have to overcome the reasoning of Federal Magistrate Smith, which is very comprehensive, as is usually the case with his Honour.

MR NAIR:   Yes, but his Honour proceeded on the wrong facts.  His Honour proceeded on the basis that two boxes were ticked when, in fact, only one of the three boxes were ticked.  The fact that two boxes as such in that section were ticked is nothing to the point, your Honour, because if the box “Authorised Recipient” was ticked, one way of reading that question is to tick then one of the following two sub‑boxes, if you like.  So the fact of two boxes being ticked are neither here nor there.  Only the question was answered in only one way and his Honour the federal magistrate erred in not so finding and therefore his reasoning erred in that respect, your Honour.

GUMMOW J:   Thank you.  There are insufficient prospects of success in an appeal to this Court for the displacement of the reasons of the Full Court and, indeed, of the reasons of the Federal Magistrate.  Accordingly, special leave is refused with costs.

The court will adjourn until 2.00 pm.

AT 12.32 PM THE MATTER WAS CONCLUDED