SZOAU v Minister for Immigration and Citizenship & Anor [2012] HCATrans 190

[2012] HCATrans 190

[2012] HCATrans 190

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S93 of 2012

B e t w e e n -

SZOAU

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, 17 AUGUST 2012, AT 12.23 AM

Copyright in the High Court of Australia

MR M.J. LEEMING, SC:   May it please the Court, I appear with my learned friend, MR L.J. KARP, for the applicant.  (instructed by Legal Aid NSW)

MR S.B. LLOYD, SC:   May it please the Court, I appear with my learned friend, MS A.M. MITCHELMORE, for the respondent.  (instructed by DLA Piper Australia)

FRENCH CJ:   Yes, Mr Leeming.

MR LEEMING:   As your Honours know, if the legal meaning of the statute be correct, it produces what could only be described as a strange result.  That is the language of the Full Court, Justice Buchanan.  The extravagant claim of South Korea to sovereignty over the whole of the peninsula yields the conclusion that no one who is a citizen of North Korea can validly make an application for a protection visa in this country until such time as the Minister – to use the language in this area – lifts the bar.

FRENCH CJ:   I thought the word used in the submissions was a more technical notion of exorbitant rather than the pejorative term of extravagant.

MR LEEMING:   We would say both, and unrealistic and unworldly.  In this case there is evidence, and the evidence is that fairly recently some 70 people have applied for protection visas in this country coming from North Korea.  They in relatively recent months were told, “Sorry, that application is invalid”.  Forty-three applied to the Minister to lift the bar and the outcome of that application was it has not happened once; 20 have been knocked back and 23 are still waiting to hear.  That is a few months ago.  It may be possible to update that.  We have tried but I am unable to give any better information than what your Honours can see in my instructing solicitor’s affidavit.  The numbers I have relied upon your Honours will see at page 109 of the application book.

This is truly a purely legal question, construing a single subdivision of an important Act, with which this Court is familiar, and it was over in half a day in the Full Federal Court.  Can I just deal with one thing that is put in my learned friend’s arguments, and that is that this is not somehow a suitable vehicle.  I am told my learned friends do not say that this is not a suitable vehicle to determine this point; I am grateful for that.

The Tribunal at first instance expressly denied itself any evaluative function in determining whether the South Korean exorbitant or extravagant claim was merely theoretical or beyond that.  Your Honours can see that in matters that we have addressed in the written submissions.  It is page 38 of the ‑ ‑ ‑

BELL J:   A matter also you touch on in your reply, I think, at paragraph 3.

MR LEEMING:   We do.  It is a small point, your Honour.

BELL J:   The matter that I wanted to raise with you about that was this - looking at the approach that Justice Robertson took at paragraph 51 on application book 83, his Honour clearly approached the matter mindful that that was the ‑ ‑ ‑

MR LEEMING:   His Honour was right to do so, with respect.

BELL J:   Yes.  It did not seem to me to necessarily assist you much, Mr Leeming.

MR LEEMING:   Thank you, your Honour.  Then can I deal in an overview way with the nature of the argument.  Your Honours have more provisions than you need in the bundle of materials that have been provided.  At page 95 of the reprint your Honour has the beginning of Subdivision AK, the construction of which is the task of the courts below in this application.  It starts, helpfully, with something that one is seeing more and more in federal and State legislation – namely, an express purpose designed to engage purposive construction and provisions in Interpretation Acts and Acts Interpretation Acts.  Can I draw the Court’s attention to three aspects of 91M – first of all, the word “can”:

the Parliament considers that a non‑citizen who can avail himself or herself of protection –

I come back to “can”.  Then there are two limbs to that – either because of nationality or because of some other right to re‑enter.  Your Honours know that my client’s submission was and is that nationality, where it bites, in 91M, so as to render applicable the division and therefore to render invalid a protection visa application until such time as the Minister lifts the bar, means something real rather than merely theoretical.

That, we would say, is a construction that is assisted, first of all, by the ordinary meaning of the word “can” in 91M and, secondly, by the word “other”.  The two ways in which the non‑citizen can avail himself or herself of protection are either nationality or some other right to re‑enter and reside.  A right to re‑enter or reside is a real right.  That is expressed to be a right other than the right of nationality and we would say that is the strongest textual support one could ask for – for the right of nationality to be something beyond that which is merely theoretical.

Of course, 91M is merely purposive.  Of course, as is common ground and as his Honour Justice Robertson, with respect, correctly held, yes, the subsequent division should be construed in its light and, we would say, particularly when the same structure and the same words are used in the provision that matters, which is 91N.  So that just as the purposive provision M has two limbs, so too does 91N; N(1) triggers the section because of nationality and that is what matters in this case.  Subsection (2) triggers the provision if one has a right to re‑enter and reside – the other aspect of the division.  So plainly enough, we would say, 91N(1) falls to be construed in the same way as the first half of 91M; 91N(2) falls to be construed in light of the second half of 91M.

As your Honours know, I think, 91N(6) on the following page requires the question of nationality to be determined solely by reference to the law of that country and it is that which gives rise to the difficulty when one has an extravagant/exorbitant claim by one country.  But that simply begs the question, we would say, as to what is the proper meaning of “national” in 91N.

Then the mechanism is well established that it feeds into the only other thing which I wish to invoke in support of the proposition, which is a construction that accords and accommodates Australia’s obligations under treaties.  Section 91P renders invalid unless 91Q applies.  So 91P is what all of those 73 North Korean protection visa applicants face, and 91Q is the provision that permits the Minister, so‑called, to lift the bar.  We say, with great respect, it is difficult – although this is a matter of contention, I think, between me and my learned friends – to explain how 91Q is something which comfortably satisfies Australia’s protection visa applications. 

The 91Q, this lifting of the bar, requires the Minister to form a view about the public interest and then on an asylum seeker by asylum seeker basis, as your Honour can see from subsection (1), grant a seven‑day window for that particular individual to make his or her protection visa application.  It is obviously going to be quite a burdensome task for the Minister because 91Q(3) requires that task to be exercised personally and for reasons to be given to it in the form of scrutiny, as your Honours can see in subsection (4).  In particular, the Minister who chooses to lift the bar for an individual for seven days has to produce a piece of paper containing his or her reasons about public interest that are going to be tabled.  Of course, in 91Q(7) there is an anti‑mandamus provision that is familiar with provisions in this Act that your Honours have previously seen.

We simply say if one is construing this Act to give effect to Australia’s obligations to determine whether or not this country owes protection obligations to applicants, why would you force the Minister to do all of this work in the case of that unusual category, North Koreans, where

there is an exorbitant/extravagant claim by South Korean sovereignty, when there is a much simpler way to construe it which accords with the express purpose – namely, that nationality there means something that gives those people who have chosen to come to Australia but confines it only to those cases where they have a real, practical right to go somewhere else, other than a merely theoretical right?

BELL J: How does that fit with section 91N(6)?

MR LEEMING: Section 91N(6) requires an assessment of nationality simply be determined by reference to the law of that country. So that if one has, say, a dispute or the results of war and competing claims over a region like Kashmir, for example, then one just looks at that country. For the purposes of determining that aspect of nationality, we say that is not the complete answer; one looks beyond it to whether there is some form of effective protection that is offered. Those are essentially the submissions that can be made on any appeal if your Honours were minded to grant special leave.

FRENCH CJ:   Thank you.  Mr Lloyd.

MR LLOYD:   We accept, your Honours, that the matter is a point of statutory construction.  The only point we advance for why special leave should be refused is that we say the prospects of success do not warrant a grant.  We say Justice Robertson’s analysis and approach to statutory construction adopted by the whole of the court is orthodox and correct.

When one looks at what Subdivision AK and subsections (3) to (7) of section 36 are meant to achieve, it is apparent that the construction adopted by Justice Robertson or by the court below achieves the purpose in section 91M and fulfils the task.

If I put that in context:  prior to those provisions being enacted, there was a position where anyone could seek a protection visa application and there was little incentive for somebody who could access protection in a safe third country to go there.  They could try their luck in Australia and then perhaps if they failed then go to the third country.  In some cases that was problematic because their capacity to go to a third country may have expired during the extensive Australian protection visa process.

So a number of matters were put in.  The first one was section 36, (3) to (7).  This was all in the same Act at the same time with the same objective.  Subsections 36(3) to (7) in effect create an obligation upon protection visa applicants to take all steps to avail themselves of rights they have to go to – and I use the expression “safe third country”.  That means it could be a country of their nationality but, in a sense, not the country that they say they are a refugee from – not the country where they have fled from but some other country, whether they are a national of that country or just simply have a right to reside in that country as, for example, Australians do with New Zealand.

In those circumstances what section 36(3) operates for is that you have to avail yourself of that right otherwise you are not eligible for a protection visa.  But all of that still requires you to go through the whole process and Parliament, in enacting Subdivision AK, wanted something that would even short‑circuit that route.  That is what Subdivision AK does.

There are two classes of people identified in section 91N who are precluded from making protection visa applications. That is because there is a kind of statutory assumption that people who fall into those classes are likely to be able to access protection in a country other than the one from which they have fled. So if you are a national of two or more countries you are likely to be able to get protection and if you are a person who is perhaps a national of one country or stateless but habitually resident in one country but have a right to enter and reside in another country – this is 91N(2) – then subject to two further provisos, in that case you are precluded. The further provisos are you have to have resided for at least seven days in that safe third country, or in that third country, I am sorry. The third one is that the Minister has to have declared that country under section 91N(3).

It can be seen that there is not a complete meshing between N(1) and N(2) because, for example, a person who is a dual national from country X – say, X and Y – would, under 91N(1), be precluded.  But let us say another person is a national from country X but has a right to enter and reside in country Y, but if the Minister has not made a declaration under 91N(3), that person is not precluded.  So there is not a pure meshing.  There is a certain, we accept, rough approximation.  In N(1), if you are a dual national, the Parliament expects that you are likely to be able to get protection in the other country, and if you have a right to enter and reside and you have lived there at least for a little while and the Minister has decided that it is safe then you are let out.

Now, the safety valve – and obviously there is a recognition – we do not say that nationality is a complete, as it were, answer to someone being able to get protection because, of course, putting aside dual nationals, almost every case of a refugee person is someone saying, “I can’t get protection from my country of nationality”.  The point is that 91N(1) and N(2) are a rough approximation where Parliament has said: “In these cases you just can’t even apply.  We’re not going to spend time.  You should go to that third country up‑front, quickly.  However, if you make a claim that you can’t get protection in that country either or anything else, you can’t get to it for some reason, then 91Q(2) is in place”.  We say that this is a very strong answer to the applicant’s case.

Your Honours, I know, have been taken in recent litigation to a number of these non‑compellable discretions of the Minister.  Your Honours will see that there is not an equivalent to 91Q(2) in any of those where this specifically envisages that the Minister may consider information that raises the possibility that, although the person falls within N(1) or N(2), they might not be able to avail themselves of protection.  That shows that nationality or rights to access are not meant to be equivalent to “can avail themselves of protection”.  There is a sort of assumption, but the Minister is the backstop to ensure that Australia is not in breach of its international obligations.

That is the approach that the Full Court considered to be correct.  We respectfully say it is.  My friend’s principal answer to that is, well, that puts the protection of Australia’s international obligations at risk because there is this vague non‑compellable discretion of the Minister.  That is the only way it can be done.  Our answer to that is, as your Honours will be familiar from the M61 Case, the entirety of everyone on offshore protection, the only way Australia can observe its international obligations in respect of those persons, to the extent that they are refugees, is at the Minister’s personal discretion, otherwise they can be removed.

Also, the Court has also fairly recently seen cases where there have been examples of the Minister’s discretions under section 417, another non‑compellable discretion, and in that, for the last two decades up until about March or April of this year, any protection of Australia’s international obligations under the Convention Against Torture, the ICCPR or the Convention Protecting the Rights of Children were all protected by non‑compellable discretions of the Minister.

We say there is absolutely no reason to construe section 91N(1) and the word “national” in some elaborate way to mean effective nationality in order to ensure that Australia meets its international obligations for two reasons. One is that that is just not the structure of the Act. Secondly, no matter how broad – well, subject to one qualification, no matter how broad a view of effective protection one reads, the position must still be that the Minister, at the end of the day, has to do it.

Unless one reads “effective protection” as meaning it is so effective you are not a refugee, if it has to be that effective then what this provision means is, yes, that would ensure Australia would not be in breach of its international obligations but that would mean in order to determine whether or not you can put in an application to claim to be a refugee you have to found to be a refugee.  We say that just is not right.  What Justice Robertson said was right.  There is an assumption.  Those two classes will generally likely be safe because they will have a third safe country to go to.  To the extent that they are not, the Minister under section 91Q is the answer, as the Minister is in a number of other areas.

The only other thing we would say is that we say section 91N(6), which talks about nationality being determined by reference to the law of the place is, at least in answer to much of the case to the extent that effective protection goes beyond legal rights because it would seem to be strange to say that one can determine nationality by reference to the law of the place if in fact effective protection to any extent goes beyond legal rights because then you are not able to see what that is. So, we say that Justice Robertson’s reasons, somewhat grudgingly adopted perhaps by the other members of the Court, are cogent and correct and that it is not worth this Court’s while to spend time on it because the prospects of changing it are not sufficient. May it please the Court.

FRENCH CJ:   Thank you, Mr Lloyd.  Yes, Mr Leeming.  Incidentally, Mr Leeming, I am just looking at the draft notice of appeal at 98.  How would you formulate the ground?  The ground there is pretty uninformative.  So you are formulating a particular construction.  How do you formulate it beyond saying that what is been adopted below is wrong and ‑ ‑ ‑

MR LEEMING:   I agree with your Honour in that there should be a better formulation.

FRENCH CJ:   Perhaps forget about whether it is a drafting - forget about for the moment the context of the ground, what is the construction of 91N for which you contend?

MR LEEMING:   Your application is rendered invalid under N if not merely you have merely theoretical nationality, but – the easiest adjective is “effective” - but you have effective nationality, that is, nationality that carries with it real rights, to use the language in the following subsection, to enter and reside, and that is something that is ‑ ‑ ‑

FRENCH CJ:   It is a legal right to enter and – when you use the word “real”, do you mean a legal right to enter and reside according to the law of that country?

MR LEEMING:   I do, yes, your Honour.  That would mean that the words in 91M, “some other right to re‑enter and reside” would coalesce.  It would mesh with the meaning of “nationality” so that embedded in “nationality” is the right to re‑enter and reside rather than merely a theoretical right.  One can call that a legally enforceable right, one can call it effective nationality,

but that is the context and it is quite plain that the Tribunal approached it that merely theoretical nationality was sufficient. 

All I was going to say is that it is hard to avoid the impression that this legislation is designed to stop in the tracks the Afghan asylum seeker who has a Canadian passport as well.  There should not be any time wasted on that.  It is very hard to see – certainly there is nothing in the extrinsic materials that is directed to the unique situation that my client and those coming from North Korea face, the outcome of it - and then the question is, if one has leeways of choice in terms of how to construe this, well, not only are there textual, but there are contextual reasons to support a less subtractive approach to this division which, after all, means that there can be no consideration on the merits of an application for protection.  May it please the Court.

FRENCH CJ: Thank you. This application raises a question about the construction of section 91N of the Migration Act 1958 (Cth). The applicant is a national of North Korea who claims to have a well‑founded fear of persecution on account of his political opinions if returned to that country. His application for a protection visa was found the Refugee Review Tribunal to have been invalid because at the time he made the application he was, according to South Korean law, a national, not only of North Korea, but also of South Korea. In our opinion, the approach of the Federal Court to the construction of section 91N was consistent with the text of the section and its context, it is unattended by sufficient doubt to warrant the grant of special leave. Special leave will be refused with costs. Yes, the Court will adjourn briefly to reconstitute.

AT 12.48 PM THE MATTER WAS CONCLUDED