SZNKX v Minister for Immigration & Citizenship

[2010] HCATrans 214

[2010] HCATrans 214

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S2 of 2010

B e t w e e n -

SZNKX

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Office of the Registry
  Sydney  No S32 of 2010

B e t w e e n -

SZNKW

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Applications for reinstatement

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 18 AUGUST 2010, AT 9.52 AM

Copyright in the High Court of Australia

__________________

MR S.E.J. PRINCE:   May it please the Court, I appear for the applicants in these matters.  (instructed by the applicants)

MR R.J. WHITE:   May it please the Court, I appear for the Minister.  (instructed by Sparke Helmore Lawyers)

HIS HONOUR:   I should indicate that in both matters the Registry is in possession of a submitting appearance from the second respondent submitting to any order that the Court may make in the matter, save as to costs.  I think, Mr Prince, I will not trouble you just for the moment.  Mr White, I appreciate that these two applicants lost in the Tribunal, very largely on credit grounds.  Can I just ask this?  The special leave application in this Court really hinges on the proposition that in the anonymous communications, which were taken into account by the Tribunal in each case as to the bogus nature of the claims, the Department of Immigration file number was stated.  Is there any evidence of that, or is it conceded to be so?

MR WHITE:   It is, your Honour.  It was reproduced in both appeal books in both matters, the particular letter.

HIS HONOUR:   In the Federal Court of Australia?

MR WHITE:   Correct.

HIS HONOUR:   Right.  Thank you.  Can I just say this?  We are talking about reinstatement.  We are saying nothing really as to the merits.  The questions raised by the two applicants do seem of some interest and there is potential significance.  I am putting this against you, and there may be a lot to be said against what I am saying, but to rely on anonymous communications, while necessary and certainly not improper or unreasonable, does raise a question mark about reliability.  To pass on the content of the communications without passing on a circumstance that might enable the relevant applicants to challenge the reliability of the anonymous complaint may not be a full compliance with section 424A.  It is a question.  The answer to it may be very strongly your way, but the thing is should it not be restored so that the ordinary processes of special leave can take place in relation to it?

MR WHITE:   The difficulties that we say this argument, which is now being raised for the first time, has include the absence of any evidence in relation to what precisely occurred at the Tribunal hearing to verify what in fact was raised in oral particulars by the Tribunal with the applicants in purported compliance with section 424AA, which, as I understand it, is accepted if the Tribunal did comply with that section then its requirement to comply with 424A was waived.

The other difficulty that we foresee with the argument now raised by the applicants is that the information that they say was not provided in the context of providing clear particulars was, as your Honour has noted, the DIAC reference number.  That is only relied upon to the extent that it goes to bolster the applicants’ explanation that the source of the anonymous information was a disgruntled former migration agent who acted on behalf of the applicants. 

It is difficult to see, in our submission, how that information could constitute information for the purposes of 424A of the Migration Act given that on its face it would not constitute a denial, undermining or rejection of the applicant’s claims to be a refugee and we rely in that regard on the High Court’s pronouncements in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 17 and 18.

As I understand it from my learned friend’s submissions on the summons, at its highest, the applicants’ case is the Tribunal’s acceptance or denial of their explanation in that regard is the only issue to which this information relates.  That was an explanation that was already provided by the applicants to the Tribunal.  It did not accept that explanation or the theory propounded on the basis that in its view and its findings of fact open to the Tribunal, that the migration agent would not have implicated herself in saying that the applicants’ claims were bogus and purportedly jeopardising her position, given that she was involved in the preparation of that application.  Secondly, the anonymous “dob in” letter only related to the claimed knowledge of one of the applicants, not both.  The Tribunal relied on that to say it suggested it was not the migration agent.

I accept your Honour’s proposition that as a broad principle the question of strict compliance with providing clear particulars under 424AA may raise the spectre of some interest in terms of compliance with 424A, but in this case, given what the Tribunal did do in providing those particulars and the way in which it relied on it, the manner in which this broad argument was raised, both before the Federal Magistrates Court and the Federal Court, we say it would have absolutely no prospects of succeeding on that basis and would be futile to reinstate.

HIS HONOUR:   Yes, thank you.

MR WHITE:   Thank you, your Honour.

HIS HONOUR:   One thing, Mr Prince.  The point that Mr White made about an absence of evidence as to what precisely occurred at the Tribunal hearing, what do you say about that and if there is force in it can it be remedied?

MR PRINCE:   Your Honour, there was sufficient evidence for the courts below to satisfy themselves as to what sufficiency of particulars had been put in the letter.  It appears to have been common ground below that the letter itself would have fallen into 424A but for 424AA and the argument was based on the exception in 424A(2A) which is engaged when 424AA is satisfied.

The courts below extracted a portion of the Tribunal’s reasons which, in both cases, was materially the same which describes the exchange between the Tribunal and the applicant in which the Tribunal endeavoured to record, it seems, its compliance with section 424AA by providing a statement at the beginning that a series of propositions were going to be put to the applicant upon which he would be asked to comment. If he wanted time he could ask for the time and then a series of propositions are put

in paragraphs, for example, in SZNKX, at paragraph 84 and if your Honour has the reasons of his Honour Justice Lander below ‑ ‑ ‑

HIS HONOUR:   Just one moment, I do.  I have Justice Lander’s reasons.

MR PRINCE:   If your Honour goes to, for example, paragraph 8 which is on page 3.

HIS HONOUR:   Yes.

MR PRINCE:   There is a recitation there of what the Tribunal put to the applicant.

HIS HONOUR:   Yes.

MR PRINCE:   That was found by his Honour in paragraph 20 to have constituted “clear particulars of the information.  So the court did not take the view that it had insufficient evidence to ascertain whether clear particulars of the information had been provided.  The letter was before the court.  It is simply that attention was not directed to the absence of the particular in that recitation by the Tribunal.

HIS HONOUR:   Yes, thank you.

MR PRINCE:   Thank you, your Honour.

HIS HONOUR:   Is there anything further you wish to say, Mr White?

MR WHITE:   No, your Honour.

HIS HONOUR:   Thank you.  I will deal first with SZNKX.

The applicant claimed to fear persecution on the ground that he was a member of a particular social group, namely homosexuals in Bangladesh.  The Refugee Review Tribunal upheld a decision of a delegate of the first respondent to refuse a visa because the Tribunal member did not believe he was a homosexual.  He reached that conclusion after a detailed analysis of the incidents which the applicant claimed had happened and he did so for reasons of credibility. 

An application for judicial review to the Federal Magistrates Court failed.  An appeal to the Federal Court of Australia also failed.  The applicant’s application for special leave to appeal to this Court was deemed, under the High Court Rules, to have been abandoned.

The applicant complains that the Tribunal failed to provide the applicant with sufficient particulars of an anonymous letter, asserting that the applicant’s partner’s claim to be a homosexual was “totally bogus”, on which it relied, in that it disclosed the correct Department of Immigration file number for the applicant.  The applicant submits that this shows that the letter could not be relied on because it was likely to have come from the applicant’s former migration agent, with whom he had fallen out.

Whether the file number ought to have been disclosed raises potentially important questions under section 424AA of the Migration Act 1958 (Cth). Despite the forceful points made by Mr White on behalf of the Minister against this course, I think that in the circumstances the applicant’s application for reinstatement of his application for special leave to appeal to this Court should be granted. Therefore, I order:

1.That the special leave application be reinstated.

2.That the applicant file its written case and draft notice of appeal on or before Wednesday, 8 September 2010.

Is that enough time, Mr Prince, for you?

MR PRINCE:   Yes, thank you.

HIS HONOUR:   Good. 

MR PRINCE:   Before your Honour turns to the next matter, could I just in terms of – there might be a matter to correct the transcript, your Honour.  The anonymous letter related to the applicant in SZNKW and I think your Honour was dealing with SZNKX so that when your Honour referred to the letter regarding the applicant, I take it your Honour was referring to the applicant in SZNKW.

HIS HONOUR:   Yes, I think I was.  Thank you for that correction.

MR PRINCE:   Yes, thank you, your Honour.

HIS HONOUR:   In SZNKW, the claimant claimed to fear persecution on the ground that he was a member of a particular social group, namely homosexuals in Bangladesh.  He claimed to be a partner of SZNKX.  The Refugee Review Tribunal upheld the decision of the delegate of the first respondent to refuse a visa because the Tribunal member did not believe that he was homosexual.  He did so on credit grounds in view of various conflicts in his past accounts.

The Tribunal member rejected the applicant’s claim that the author of an anonymous fax message to the Department was his former migration agent because of the improbability that the agent would admit that she had earlier put forward false claims.  The Tribunal member did not disclose the fact that the letter identified the correct Department of Immigration file number for the applicant.

The Federal Magistrates Court refused an application for judicial review and the Federal Court of Australia dismissed an appeal from that decision. The point which the applicant raises is novel. Was the existence of the file number something which ought to have been disclosed under section 424AA of the Migration Act 1958 (Cth)? Without stating any opinion on the answer to that question, I think that in the circumstances, despite Mr White’s submissions, the applicant’s application for reinstatement of his special leave application should be granted. I therefore order:

1.That the special leave application be reinstated.

2.That the applicant file the written case and draft notice of appeal on or before Wednesday, 8 September 2010.

Anything else? 

MR PRINCE:   If it please the Court.

HIS HONOUR:   The Court will now adjourn.

AT 10.06 AM THE MATTERS WERE ADJOURNED