SZMCD v Minister for Immigration and Citizenship & Anor

[2009] HCATrans 211

[2009] HCATrans 211

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S100 of 2009

B e t w e e n -

SZMCD

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 SEPTEMBER 2009, AT 2.03 PM

Copyright in the High Court of Australia

MR R.T. BEECH‑JONES, SC:   May it please the Court, I appear with my learned friend, MR B.D. O’DONNELL, for the applicant.  (instructed by Legal Aid Commission of NSW)

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

FRENCH CJ:   Yes, Mr Beech-Jones.

MR BEECH-JONES:   Your Honours, we contend that the application raises a significant issue concerning the effect of a new provision in the code of procedure governing the Refugee Review Tribunal – namely, section 424AA – there being an equivalent section applying to the other review tribunal under the Migration Act.  Your Honours, can I seek to make two propositions.  The first is what we submit are the issues of construction concerning that section and then, second, why we submit this case is a suitable vehicle concerning those issues of construction and why it becomes a suitable case for special leave.

Could I start by taking your Honours to the sections.  It is perhaps appropriate if I could take your Honours behind the first tab of the materials we provided.  I do this with some trepidation knowing that your Honours have pored over these provisions a few times and most recently published the decision in SZKTI.  The next chapter in Parliament’s attempt to, on one view, codify or, on another view, limit procedural fairness as applied to these tribunals is the insertion of section 424AA, which is, I think, perhaps on the third page.

Your Honours, there are some features of this which I would seek to bring to your Honours’ attention.  What it does is provide a mechanism by which the Tribunal during the hearing, under section 425, can give what is loosely called oral particulars of information the Tribunal considers would be the reason or part of the reason for affirming the decision under review.  The section interrelates with the next two sections.  It clearly – and we submit this is something that the Full Court did not give sufficient attention to – on one view, either limits or certainly interrelates with section 425 itself.  Our contention is that it is a true Anthony Horden style provision of the kind - of the argument did not find favour in SZKTI in relation to the conduct of a hearing under section 425(1).

The second manner in which it interrelates with the provisions is that in section 424A(2A) the Tribunal is exempted from giving the written form of particulars required by that section if they have been given orally under section 424AA.  So, in a sense, if they are given at the hearing, there is no need for them to be given in writing.  One problem that has emerged – we say not a problem but we think the Full Court sought to address it – is this.  Section 424A has an exception in subsection (3) of various types of information, one category being (3)(a) – information:

that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member –

That is colloquially known as country information, so that country information does not have to be the subject of any written notice under 424A.  No such exception is provided to the concept of information in section 424AA.  So that its concept of information stands on its face unencumbered by the exceptions in subsection (3) of 424A.

FRENCH CJ:   Why do you say it has a wider operation, apart from any linguistic point – I am sorry; the textual point.

MR BEECH-JONES:   The textual point.  Can I throw out why this case is an illustration of it.  In other words, assuming we are correct in our favour that an obligation in a sense of something close to or in a type of a jurisdictional limit is imposed by 424AA(b), that can arise in relation to country information, on our suggested construction, but it does not arise in relation to section 424A.  As experience tells us, and as this case is an example, country information can be quite critical to the outcome of any particular case.  In this case it was sought to be one of the reasons why my client’s credit was rejected and it was also a reason why the Tribunal found he could relocate within Pakistan.

The way the Full Court dealt with section 424AA was in the following terms.  My client contended that during the hearing the Tribunal had attempted orally to give particulars under 424AA(a), but that attempt had miscarried and the particulars related to country information.  Accepting that contention for the moment, the Full Court said, “Well, that doesn’t give rise to any breach of any provision.  The only significance of not doing it under 424AA is that the exception provided for in section 424(2A) has not arisen.  That is the first step.

The court also said, “By the way, country information is not information for the purposes of section 424AA”, and they invoked this Court’s judgment in SZBYR for that proposition – a contention, we submit, is incorrect.  The next step was also this country information is not the subject of any obligation under section 424A, because of the exception in (3)(a) so, in effect, it drops through the various hoops.

FRENCH CJ:   That is on the basis that 424AA provides an oral procedural alternative to the process under 424A, does it not?

MR BEECH-JONES:   Yes.  What we contend, your Honours – and their Honours’ analysis is exclusively focused on the interrelationship between 424AA and 424A – and our competing proposition, one we would submit has sufficient merit to warrant this Court’s review, is that that overlooks an interrelationship between 424AA and section 425.  It may be that there is clearly a degree of complementation between 424AA and 424A but, by its terms, 424A is, we submit, carving out an aspect of what is required under section 425(1).

It is an important procedural benefit, particularly in a case like this, in that, if the Tribunal embarks during a hearing on the process of controverting – and I do not mean that in a critical way – an applicant’s case by information properly described, then procedural fairness, for want of a better phrase, is enhanced or indeed the hearing is enhanced by the Tribunal complying with the steps in 424AA(b).

Now, it may be that a consequence is that no written requirement is required under section 424A, but we respectfully submit that does not gainsay the proposition that if it is not done properly under 424AA(b) there has been a breach of a relevant provision which confers an important procedural protection on an applicant for review and one would ordinarily expect that to lead to jurisdictional error.

This is similar to the argument rejected in SZKTI, but we submit there are some reasons for why that type of reasoning, this Court’s reasoning, is not applicable in this context.  In SZKTI, the critical aspect, or one of the critical aspects, was that the words “Without limiting subsection (1)” were found in subsection 424(2).  There is in this case nothing in the scheme which suggests any equivalent words affecting the interrelationship between 424AA and section 425.

Could I just take your Honours briefly to the passages in the Full Court reasons which we submit throw up this issue.  In the judgments of Justice Tracey and Justice Foster, your Honours will see at page 84 of the appeal book, beginning at paragraph 74, this proposition:

The first question in this appeal is whether non-compliance by the Tribunal with the provisions of s 424AA (in the present case . . . .also constitutes jurisdictional error.

We think not.

There is a discussion of various authorities.  At paragraph 91 on page 86 there is a finding by their Honours that the information covered by each section must be the same:

Under s 424AA, country information simply need not be mentioned at all either because it is not information within the meaning of that term in s 424AA or because, if it is information within s 424AA –

Then their Honours proceed.  Your Honours, we respectfully submit that as to the first limb of that, with respect, their Honours are clearly wrong.  The proposition that country information is not information is simply not sustainable.  It appears to be something their Honours were driven to by driving to a construction that there is nothing in section 424AA(b) which could give rise to a jurisdictional error, so to harmonise these provisions we should assume section 424AA has an exception that simply is not there.

The second part of their Honours’ proposition concerns what happens if there is no compliance with section 424AA.  That is the matter which I sought to address your Honours on earlier – that is, the Full Court said the only consequence is that there is no exemption from the obligation to give written reasons in section 424A.  Our contention is that that is not the only consequence and we respectfully submit that the construction that we seek to place on it is one that enhances the procedural protections to persons in the position of my client and the proposition accepted by the Full Court is one that diminishes it.  We otherwise pointed to the words “must” in 424AA(b) as strongly indicative of there being an obligation.

So in the end, your Honours, what we submit is the Court is confronted with a crisp question of how this new provision interrelates with 424A and 425(1) and we all know from experience the number of these cases that are proceeding either through the tribunals or through the courts.  We would respectfully submit that a consideration of whether there is this procedural protection is one of itself that would be sufficiently important.  That is the first point I wish to make.

The second point I wish to make is why we submit it is a suitable vehicle, because there is an issue about whether there was non‑compliance with subsection 424A(b).  Could I start by taking your Honours briefly to the Tribunal’s reasons and, in particular, to the finding section beginning at page 14.  At about line 40 in the first dot point, there is a series of points made by the Tribunal as to why my client’s credibility was not to be accepted.  The first dot point concerns evidence he gave at the hearing.  The Tribunal says in the third sentence that at the hearing my client had stated:

When the Tribunal pointed out to the applicant that the TNSM –

which was a radical Islamic group operative in the Swat region of Pakistan –

had been in existence since 1992 he stated that although the TNSM had been in existence prior to 2007 their activities had not been that bad.  This evidence is not consistent with the country information.  The country information indicates that the TNSM came into existence in 1992 and has been very active since 2001.

That was one of the matters that led to his credibility being rejected.  Over at page 16 – and this page deals with a question of relocation within Pakistan, and it is sufficient if I just draw your Honours’ attention to the second paragraph where, in the first two sentences, it is clear that the Tribunal had had regard to country information in determining whether or not relocation within Pakistan was reasonable.

Just against that background, could I take your Honours to the last tab of that material, which is the transcript of the hearing before the Tribunal.  It was annexed to an affidavit that was read in the proceedings below.  At page 25 is the passage where, as we understand it, it is common ground there was an attempt to comply with 424AA.  At about line 29 the Tribunal states:

Some of the evidence you’ve given me is inconsistent with the country information on Pakistan.  It is important and I’m going to explain to you why it is and then I will give you an opportunity to respond.  If I find that the evidence you give me is inconsistent with the country information, it could lead to me forming a view that you are not a (indistinct) and this could lead me to the conclusion that you are not a refugee.

There is no more evidence about “indistinct”, but in context we would submit that is a reference to a credible witness or witness of truth, or something of that kind.  The next paragraph again refers to the country information on the TNSM:

The country information indicates that there they have a lot of influence and power –

Then it refers to the fact that they could relocate.  At the end it asks:

Now, would you like to comment on or respond to that and you don’t have to do that immediately.  You can ask for more time if you want to.

INTERPRETER:      Which answer?

Then the Tribunal says, in the first line:

Sorry, I’ve just given you some information which is inconsistent with the evidence you’ve given and I’ve explained to you why that’s important.

INTERPRETER:      I can’t say anything now.

The Tribunal asks:

You can’t say anything at all or you can’t say anything now?

INTERPRETER:      I’m sorry but what should I say in this regard?  I don’t know.

We just make the following points about this.  Firstly, the obligation is to draw the information to their attention and then to explain why it could be adverse, in a shorthand way.  The first thing we would respectfully submit that needs to be told is what is the inconsistency.  That passage at the top of page 26 says:

Sorry, I’ve just given you some information which is inconsistent with the evidence you’ve given and I’ve explained to you why that’s important.

We would submit one would need to at least identify the inconsistency.  I took the Court just a minute ago to the passage where the inconsistency that led to an adverse finding on credit had nothing to do with the fact that the TNSM operated outside of the Swat, which is the area at the bottom of page 25.  The inconsistency, which was part of the reason why his credit was rejected, was to do with whether the TNSM had been effectively – how active they had been going back to, I think, 1992.

So that aspect of what the Tribunal ultimately found was not brought to his attention and, in particular, the inconsistency at least is found in the final decision between how long he said they had been active and how long the country information indicated that it had been active was not, we respectfully submit, identified.  When someone says that the Full Court considered that his answers were indicative that he did not want to respond, we would respectfully submit it is equally open that he was having trouble understanding what was going on and at least in terms of what was practical some further explanation was warranted.

I make those points, your Honour, because, of course, we need to make good a proposition ultimately that there was a non‑compliance with section 424AA(b), but we respectfully submit there are strong reasons to think that we could make that proposition good.  This affected, if I can call

it, both limbs of the Tribunal’s decision – credibility and relocation – so that the case would otherwise be a suitable vehicle.

The only two other points I wish to make are, as I think I indicated, these procedural protections affect a number of applicants who are working their way through the tribunals.  Also, we have referred to the relocation principle.  I do not wish to say anything further than what we have put in our submissions.

FRENCH CJ:   Thank you, Mr Beech-Jones.  We will not need to hear from you, Mr Reilly.

During the hearing of an application for review of a delegate’s refusal to grant the applicant a protection visa the Refugee Review Tribunal orally invited the applicant to comment upon information concerning his country of origin.  The information suggested that he could return to his country and avoid the apprehended persecution upon which his claim was based by relocating to another part of the country.  The applicant claimed that the Tribunal failed to comply with a requirement under section 424AA of the Migration Act to give clear particulars of the information upon which he was being invited to comment.

A Full Court of the Federal Court held that section 424AA, which provides an oral procedural alternative to the procedure under section 424A, has no application to information of the kind put to the applicant as it was not specifically about the applicant.  It followed that an invitation under section 424AA to comment upon country information, even if put to the applicant without “clear particulars” of that information, would not constitute jurisdictional error.  In our opinion, there is no reason to doubt the correctness of that conclusion.

On the question of relocation, the applicant contended that the Full Court erred in holding that the Tribunal was no obliged to consider theoretical possibilities of persecution upon relocation including the possibility that the applicant would continue because of his beliefs to behave in a way which might attract persecution from Islamic fundamentalists other than those whose apprehended persecution grounded his claim for a protection visa.  Again, there is no reason to doubt the correctness of the Full Court’s decision in that regard.

Special leave will be refused with costs.  Thank you.

AT 2.27 PM THE MATTER WAS CONCLUDED