SZLJK & Anor v Minister for Immigration and Citizenship & Anor

[2009] HCATrans 214

[2009] HCATrans 214

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S368 of 2008

B e t w e e n -

SZLJK

First Applicant

SZLJL

Second Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 SEPTEMBER 2009, AT 3.37 PM

Copyright in the High Court of Australia

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

MR T. REILLY:   May it please the Court, I appear for the first respondent.  (Sparke Helmore Lawyers)

FRENCH CJ:   There is a submitting appearance for the second respondent.  Yes, Mr Sulan.

MR SULAN:   Your Honours, there are two points of general public importance raised by this special leave application.  The first is what constitutes a hearing under sections 425 or 426A of the Migration Act and the second is whether section 425 of the Migration Act imposes an objective requirement on the Tribunal to issue a real and meaningful invitation to an applicant to attend a hearing.

Can I take your Honours to the application book to show you how the first point arises.  Page 21, line 25 of the application book shows the first applicant was offered a hearing to be arranged by video link at Griffith Police Station, although, if he wished to attend the hearing in Sydney, he had the opportunity to contact the Tribunal to do so.  What happened next is best described in Justice Logan’s judgment in the application book at page 41, beginning at line 5.  The first applicant misunderstood that notice and he attended in Sydney on the day of the hearing rather than attending at Griffith Police Station. 

When in Sydney he saw that the matter was not listed on the noticeboard and he contacted his wife back in Griffith who advised him that apparently the hearing was in Griffith.  He did not contact the Tribunal, simply returned without making any further inquiry.  Now, that would not give rise to any particular point of importance, save for the matter noted at line 35 of the application book on that same page, a document that was in the court book, namely:

“No Reply – Checklist” under the heading “Video” there is a reference to the Griffith Police Service and then a handwritten annotation:

Never connected to Griffith – system problem. 

That was a document that was before the federal magistrate.  It does not feature at all in that judgment.  It was first picked up by ‑ ‑ ‑

FRENCH CJ:   It was not mentioned in submissions.

MR SULAN:   No, it was not mentioned in submissions.  It was first picked up by, presumably, Justice Logan in the course of the hearing before him.  His Honour dealt with that matter over the page on page 43 of the application book beginning at line 25.  What his Honour did, he did not make a positive finding that the video link must have worked or may have worked.  The “No Reply – Checklist” was the only evidence before his Honour as to the video link and whether it worked.  The way his Honour dealt with it was to say, well, that is just simply a distraction because the applicant was not in Griffith to avail himself of the hearing.

Now, in my submission, the obligation under section 425 of the Migration Act is to afford the applicants an opportunity to appear to present argument.  If a hearing is to take place via video link, which there is no objection about in this case, that is a perfectly proper way for the Tribunal to seek to conduct hearings and it is provided for under 429 of the Migration Act, but it is axiomatic that if it is going to be done by video link, the video link has to work.

BELL J:   I do not think anyone would dispute that in the event the applicant had attended at the Griffith Police Station and the video link was down and the Tribunal had proceeded nonetheless to determine the matter, that he would not been afforded a hearing, but this is somewhat different, is it not?  Firstly, we know nothing more than the entry, “Never connected to Griffith – system problem”.  We know that, going back to the decision of the RRT, there is a reference to the fact that the applicant did not attend, so presumably there was some means by which that was conveyed to the Tribunal member.  One simply does not know more about the factual circumstances concerning any difficulty with the link.  But given that the applicant on his own case was not there, the circumstance that there may have been a difficulty with the link seems to me to fall somewhat short of establishing that the Tribunal failed to give a meaningful invitation to attend a hearing.

MR SULAN:   Your Honour, can I take you first to the reasons for the Tribunal’s decision, which is at page 5 of the application book, just above line 10.  All that is said is:

Neither the applicant nor his wife attended the scheduled hearing and they did not contact the Tribunal. 

There is no indication in those reasons that a phone call was made to Griffith Police Service to determine whether or not the applicants were there.  The only evidence about this matter is notation.

BELL J:   Is the one line.

MR SULAN:   The decision of Craig v South Australia makes clear that on a case for jurisdictional error the court is to take into account any available materials.  Now, in my submission, it is the only evidence that the system never connected and it did not work.  It must be the case that where a hearing is to be conducted by video link that there must be a live connection at some point to establish whether or not the applicant is there.  If that is not done, then, in my submission, there has not been a hearing and therefore the applicants have not been afforded the fairness required under Part 7 of the Migration Act.  I cannot put it any other way or any higher than that, but simply to note the importance of those provisions of the Migration Act.  There are many authorities which establish how important those procedures are.

BELL J:   I do not think there is an issue about that, Mr Sulan.

MR SULAN:   And that they must be strictly complied with.  In this case, although he was not there to avail himself of the hearing, it cannot be the case that where there is to be a hearing by video link that the video link cannot work or does not work at some point and there still has been compliance with those particular sections of the Migration Act.  That is my submission as to that matter.  I do not put it on the basis that there has not been a real and meaningful invitation with respect to that first point.  I simply put it on the basis that there has not been a hearing because the video link has not connected which must occur if there is to be a hearing.

BELL J:   It is two things, is it not?  It is the video link working and the applicant being there to have his image and voice transmitted.

MR SULAN:   Your Honour, I do not see the second step of that proposition to be necessary in order for there to have been a hearing via video link, but certainly the first part is important, namely, that the video link at some point has to have worked.

If I could just move to the second basis upon which I put the special leave application, namely, that in this case there has not been a real and meaningful invitation.  It is clear that this applicant was confused, hence his attendance in Sydney rather than at Griffith Police Service.  The cases, in particular, SCAR, have made very clear that when the court comes to assess whether or not there has been a real and meaningful invitation, it is necessary to make that assessment objectively and you have to take into account matters both of which the Tribunal is aware and matters of which the Tribunal is unaware, and those are factors that all go into the mix to determine whether or not there has been a real and meaningful invitation in the particular case.

Now, his Honour, in my submission, did not address that test objectively.  If I could just take your Honours to application book page 42, line 25, the sentence beginning:

There is no doubt that the hearing offered must be a real and meaningful one, but the word “invite” in the subsection will be noted.  Such an invitation was extended in this case.  It is just that for reasons of confusion it was not availed of and the Tribunal knew nothing of this before making its decision.

In my submission, those final words are important in this case.  It was very much a factor in play that the Tribunal was not made aware of the particular applicant’s confusion, but ‑ ‑ ‑

FRENCH CJ:   He did not take any steps to communicate with the Tribunal.

MR SULAN:   He did not, but nevertheless, the test still has to be considered objectively and if he is confused and attended in the wrong place that is a matter to take into account.

FRENCH CJ:   But they do not know he is confused.  All they know is that he has not attended anywhere.

MR SULAN:   I accept that, your Honour, but the fact of the matter is that SCAR says, look, you have got to take into account factors of which the Tribunal is aware and unaware and in this particular case, I cannot put it any higher than this, that that particular passage of his Honour Justice Logan’s judgment, in my submission, did not take into account the test as set down in SCAR. 

Just to add to that, there is a point of principle with respect to SCAR in the sense that the courts below have debated its correctness and if that was an issue which was to be contested, this could provide a suitable vehicle for considering that factor.  There is a recent decision of his Honour Justice Perram in SZLLY, which is set out in my submissions, where some of the authorities are collected as to the correctness of SCAR and whether or not, in particular, section 422B(3), which is a recent 2007 amendment to the Migration Act, has rendered that debate otiose. 

I simply say that this could be a case, or is a case, in my submission, which could test the proposition in SCAR on whether or not the courts need to consider these matters objectively, taking into account matters they know and do not know.  If I can be of any further assistance.

FRENCH CJ:   Thank you, Mr Sulan.  We will not need to trouble you, Mr Reilly.

The applicants were invited by the Refugee Review Tribunal to attend a hearing in connection with their application for a review of a decision refusing them protection visas.  The invitation specified a video conference hearing at Griffith but offered the alternative of a hearing at Sydney.  The applicants did not respond to the invitation.

The applicant husband, under a mistaken belief that the hearing was to be in Sydney, did not attend at Griffith on the appointed date but did attend at the Tribunal building in Sydney.  The matter was not listed there.  He did not speak to any staff and did not communicate with the Tribunal until after it had handed down its decision five weeks later.  There was evidence, not the subject of any submission, of a difficulty with the video feed to Griffith. 

The applicants seek special leave to appeal against a decision of the Federal Court which held on appeal from a Federal Magistrate that the Tribunal had not committed a jurisdictional error in proceeding to make its decision without having heard from the applicants.  In our opinion, there is no basis for the proposition that the Tribunal had committed jurisdictional error by proceeding to a hearing.  The Federal Court was correct to reject that proposition.

Special leave will be refused.  Do you seek costs?

MR REILLY:   Yes, your Honour?

FRENCH CJ:   Can you resist that?

MR SULAN:   No, your Honour.

FRENCH CJ:   Special leave refused with costs.  Thank you for your assistance, Mr Sulan.

AT 3.50 PM THE MATTER WAS CONCLUDED