SZOQQ v Minister for Immigration and Citizenship and Anor

[2012] HCATrans 292

[2012] HCATrans 292

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S97 of 2012

B e t w e e n -

SZOQQ

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

FRENCH CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 NOVEMBER 2012, AT 10.27 AM

Copyright in the High Court of Australia

MR N.C. POYNDER:   May it please the Court, I appear for the applicant in that matter.  (instructed by Gilbert & Tobin Lawyers)

MR G.R. KENNETT, SC:   May it please the Court, I appear with my learned friend, MS H. YOUNAN, for the Minister.  (instructed by DLA Piper Australia)

FRENCH CJ:   There is a submitting appearance for the second respondent.

MR KENNETT:   Yes, your Honour.  Your Honours, there is an elephant in the room in this case which, if it is convenient to the Court ‑ ‑ ‑

FRENCH CJ:   There certainly is.  It is called M47, I think.

MR KENNETT:   Yes.  What the Minister said about NAGV and M47 and what your Honour the Chief Justice and, I think, Justice Hayne said in response to that leaves me walking a fine line in this case.  We would not concede that there was error in this case.  We would rely on section 91U of the Act to distinguish between the two limbs of Article 33.2.  That is how the argument broadly would be ‑ ‑ ‑

FRENCH CJ:   It is not so much a question of the construction of Article 33.2.  Once you get into a section 501 application of that article you have also got a discretion.

MR KENNETT:   Well, your Honour, the delegate in this case and the Tribunal proceeded on the basis that they were working wholly within section 36(2) of the Act.

FRENCH CJ:   It did not have a discretion once 33(2) was engaged; that is right.

MR KENNETT:   Yes.  That, we apprehend, might be said to be an erroneous approach in the light of what was said in M47.  As I say, if my friend were to embrace the point and it were to be argued on appeal, we would rely heavily on section 91U, which was not canvassed in that case or in NAGV.  It is obviously a matter of some difficulty and probably some importance, so if the point were embraced by my friend, we would not seek to oppose a grant of leave on that basis.

FRENCH CJ:   That would require amendment of the grounds, I think.

MR KENNETT:   Yes.

FRENCH CJ:   All right; thank you.  Yes, Mr Poynder.

MR POYNDER:   Your Honours, clearly we would embrace my learned friend’s suggestions.  That was raised with me this morning not long before we came before your Honours.  I have had a chance to look back through the plaintiff M47.  We have referred to it in our case list and there were issues arising out of that in relation to our substantive point.  The issue of the source of authority to refuse a visa under Article 33.2 is also a subject of discussion in that case which was not resolved finally, so in our submission it is a live issue which could usefully be determined by the Court in this matter.

FRENCH CJ:   I wonder whether one course would be to adjourn this application to the next special leave sittings in Sydney on 14 December.  That would give you an opportunity to look at a reformulation of the grounds in the application.

MR POYNDER:   Yes.  We would need to put on an amended ground at least to cover that.  I anticipate that we would maintain our current ground and perhaps reformulate the ground as a second ground.

FRENCH CJ:   The alternative is to take Mr Kennett’s suggestion, which is to make a grant without any expressed – on an understanding of what the line of argument is but without any formulated ground.

MR POYNDER:   It is reasonably clear, in my submission, that the ground would be the source of power to refuse a visa under Article 33.2.

FRENCH CJ:   There is the question of the source of power and there is the question of whether the substantive argument about the effect of the refoulement of the applicant factors into the discretionary part of the exercise of the statutory power, which relies on 33.2.  If you are looking at 501, for example – 501(1)(d)(v), if I remember correctly.

MR POYNDER:   That is correct, your Honour, because it opens up the whole of the discretion under section 501 and the character test.

FRENCH CJ:   That then feeds into section 65, of course, as a criterion for the refusal of a grant.

MR POYNDER:   Yes, and also the Minister’s own guidelines under section 499 of the Act to take into account the effect of refoulement of the visa applicant.

FRENCH CJ:   So what is your preferred course?

MR POYNDER:   Our preferred course would be that the matter be referred for special leave without the need to come back again.

HEYDON J:   That special leave should be granted today?

MR POYNDER:   Yes.

HEYDON J:   With leave to reconsider the form of the papers?

MR POYNDER:   Yes, your Honour.

FRENCH CJ:   Thank you.  There will be a grant of special leave in this matter.  There will be liberty to amend the application for special leave to raise a ground related to the source of the power to apply Article 33.2 of the convention in the exercise of the power to refuse the grant of protection visa in this case.  Can that be done within 14 days, Mr Poynder?

MR POYNDER:   Yes, it can, your Honour.

FRENCH CJ:   Can you file your submissions?  I am looking at the timetables.  At the moment we are looking at 14‑day timetables.  If you can do that and file your submissions then you can stay within the ordinary timetable that we have set out.

MR POYNDER:   Yes, we can do that, your Honour.

FRENCH CJ:   Mr Kennett, are you happy with that course?

MR KENNETT:   Yes, your Honour.

FRENCH CJ:   There will be a grant of special leave then with liberty to amend the application for special leave within 14 days.

AT 10.34 AM THE MATTER WAS CONCLUDED