SZABS & Anor v MIMIA [2004] HCATrans 337 (10 September 2004)

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SZABS & Anor v MIMIA [2004] HCATrans 337 (10 September 2004)

Last Updated: 16 September 2004

[2004] HCATrans 337

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S501 of 2003

B e t w e e n -

SZABS

First Applicant

SZABT

Second Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 SEPTEMBER 2004, AT 11.14 AM

Copyright in the High Court of Australia

MR S.C. CHURCHES: If it please the Court, I appear for the applicants. (instructed by S.C. Churches)

MR J.D. SMITH: If it please the Court, I appear for the respondent. (instructed by Sparke Helmore)

GLEESON CJ: Yes, Dr Churches.

MR CHURCHES: Your Honours, we put the case for special leave today squarely on the point of the use by the Tribunal of corroborative documents, or should we say the non-use in this case, and the special leave point is the question of how a bright line might be drawn for the purposes of tribunals in using corroborative documents, the point being, of course, the question of unfairness in the exclusion of such documentary material and the point at which such unfairness will attract judicial review.

Now, the question of these sorts of corroborative documents has arisen in a number of Full Federal Court decisions in the last 12 months or so. Ironically, two of those decisions, being WAEJ and WACO, were both delivered on 15 August last year, exactly the same day on which Justice Branson’s decision was delivered, that being the decision under appeal today, her Honour having in turn, of course, heard an appeal from the decision of Federal Magistrate Driver.

The third of the Full Federal Court decisions in this area is the decision of WAIJ decided in late March of this year. That decision, unlike the previous two which were unanimous, was a divided decision of the Full Federal Court but, nonetheless, the decision in all three was that review should be granted in respect of the exclusion of documentary materials by the Refugee Review Tribunal.

Your Honours, if I might inquire as to whether those materials have been presented. They were only sent to the Registry early yesterday morning, those three Full Federal Court decisions. Thank you, your Honour, because I shall need to refer to them in the process of making the application.

The first defect in the instant decision of the Tribunal is apparent, but only apparent in the negative, in that there was no finding by the decision in respect of the three relevant documentary materials. They are referred to by the Tribunal in its setting out of the relevant facts at application book page 13 at about line 15 through to 24. There are three documents, the first being a registration document in which the Tribunal notes the applicant purported to record that a Mr Kulendran, later revealed to be a LTTE terrorist, or at least arrested on that basis, had come to stay with the applicant in Colombo. The document was purportedly signed on 1 June 1999 and the Tribunal went on to say that that document recorded Mr Kulendran’s stay as a period of one year but that the applicant had said in his oral presentation that Mr Kulendran had only stayed for a short period of time, therefore, there was an inconsistency.

The other two documents then are purportedly a letter from, firstly, a doctor in Colombo of 4 August 1999 and, secondly, a letter from a lawyer in Colombo of 5 August 1999. Those documents are dealt with in the findings at application book page 20 at about lines 10 down to 20 on that page.

GLEESON CJ: This is the matter discussed by Justice Branson at page 50 of the application book, is it?

MR CHURCHES: Yes, your Honour, about the middle of that page. The Federal Magistrate also referred in passing only at page 36 at about lines 7 to 10. Your Honours, the first thing I would note about the rejection of the residential registration form is that the objection is taken that there is an inherent inconsistency between what was said orally by the applicant and the filling out of the form as “one year stay”.

It is important to note that the form presumably, and it is reasonable to infer, was filled out at the time Mr Kulendran came to stay – that would be a reasonable inference – on 1 June. At that time it may have been proposed to be an extended period, perhaps one year. The point is then that we know from the evidence given by the applicant – and we can see this on page 6 of the application book – that Mr Kulendran left Colombo on 20 July saying he was going to visit relatives in Kandy – that is at about lines 28 on page 6 – and on 29 July occurs the assassination by suicide bomber in Colombo which leads to Mr Kulendran’s arrest.

So it is hardly surprising that Mr Kulendran does not stay on for a year. Even less surprising is, of course, that we know, and it is an uncontested fact, that the applicant left Colombo to come to Australia in late September. So at the very, very outside the most that Mr Kulendran could have stayed with the applicant would have been just under four months, at the very outside, but he had been arrested, it would appear, in late July in any case.

So to reject the document on the basis there is an inconsistency between that which is written on the document – we would submit a proposed one year is plainly to be inferred – and what actually happens with the effluxion of time is not the sort of basis that this Court said served as a suitable basis for the rejection of documentary evidence in Applicant S20 where, of course, in that case your Honour the Chief Justice in your judgment and the joint judgment of Justices McHugh and Gummow both referred to the thorough lack of credit found by the Tribunal in that case against that applicant. That, in our submission, is not the case here.

There are findings against this applicant throughout by the Tribunal but they are not in the wholehearted sense that we saw in the case of Applicant S20 and, indeed, the Tribunal in this case dealing with the matter of the residential registration form shows, we would submit, a laxity in addressing the possibilities available by looking at such a document.

But the two purported letters from professionals in Colombo raise other issues because they appear not to be the subject of any finding at all. There is no statement by the Tribunal, “I find that they are forgeries, I find that they are fraudulently presented, I reject them”. They are merely the subject at page 13 of the book of a question apparently presented to the applicant’s representative as to why these documents were not produced earlier, but the concern of the Tribunal set fair and square at about line 20 on page 13 that both were “apparently typed on the same typewriter” does not appear to have been raised directly with the applicant’s representative.

GLEESON CJ: What do you say is the error in the reasoning of Justice Branson?

MR CHURCHES: In that decision, your Honour, the argument was put to her Honour as a natural justice argument.

GLEESON CJ: Well, first of all, it was an attempt to amend, was it not? She dealt with it finally at the top of page 52.

MR CHURCHES: Well, yes, those headings at the bottom of 51 and the top of 52 are reasons that it was not expedient to allow matters to be raised freshly on appeal.

GLEESON CJ: But is that what we have to entertain, an appeal against a decision relating to the amendment of a notice of appeal?

MR CHURCHES: I would submit to your Honours that the case has been put below throughout on the basis of a failure of natural justice. I framed this application in terms of unreasonableness and it may be appropriate that, to use the terminology of the unanimous Full Court in WACO – and we refer to this on page 7 of our authorities – at paragraph [54], the concept of “inherently unfair” may be the - - -

GLEESON CJ: Yes, but we are here to deal with a potential appeal against Justice Branson, not an appeal against the Tribunal.

MR CHURCHES: Yes, your Honour. We would submit the decision of Justice Branson must inherently, your Honour, be that of a finding that natural justice or procedural fairness was not denied. That follows from the central portion on page 50 in her Honour’s decision. She has addressed the issue of procedural fairness and said, “I find that there is no denial”, and we submit that there has been.

The fault here is one, we submit, of general unfairness and it does go to some extent, of course, to a question of procedural fairness because, as the Full Federal Court decisions illustrate, if the Tribunal is of the view that the documents are fraudulent or forged, then that allegation ought to be put fair and square to the applicant, and there is no indication that that was done here at all. So, to that extent, there must be a direct procedural fairness defect. We would submit that Justice Branson did have procedural fairness addressed to her and she has dismissed that as a basis of review. So we do submit that the matter has been raised.

The question of how the Tribunal deals with such documents as those allegedly before the Tribunal here where they are professionals who give their address and their telephone numbers, we would submit, raises just the sort of issue that the Full Federal Court dealt with back in 1997 in Sun’s Case, which we have referred to in our summary of argument. That is also dealt with by the Full Federal Court in WAEJ on pages 5 and 6 of our book of authorities where the unanimous Full Federal Court there talks about the failure to address with the applicant concerns as to the authenticity of documents needs to be raised with the applicant first and, secondly, the question of what we might call the self-help by the Tribunal is then raised – that is on page 6 of the book – where it is plainly within the capacity of the Tribunal – no question of a duty absolutely falling on a tribunal, but where it has these sorts of concerns it ought not lightly to dismiss materials which would be highly corroborative if taken into account.

The problem here is, of course, that the Tribunal has not taken into its factual matrix at all these important documents which, we submit, go a long way to making the applicant’s case. They have not even been given the courtesy of being dismissed by the Tribunal, perhaps apart from the registration form, but the two letters simply disappear off the radar. They are not dealt with in a fact-finding manner by the Tribunal at all but merely cursorily passed over on the basis that they appear to be typed on the same typewriter.

Now, as noted by the Full Federal Court, I think it is in WACO, to make the allegation of forgery is a very serious matter indeed. That is what this is implicitly, plainly a charge against the applicant of having forged or caused to be forged the letters. The Full Federal Court took a very dim view of that and said that that is another reason that natural justice is required before such an allegation is allowed to float unchallenged, a most serious matter indeed.

We would submit that in the human rights context of a refugee application it is not enough for a tribunal to merely note in passing that it, without any apparent qualifications in typewriter identification, says it looks like they are typed on the same typewriter. For all we know there is a job lot of typewriters in Colombo that all look the same. Certainly modern computer print often looks absolutely identical. So as a means of excluding the evidence it is, in our submission, completely inadequate.

It might also be noted, your Honour, at page 13 there is some small detail from those letters set out there and they raise the issue of a dog that did not bark because the first of the letters, purportedly from the doctor – there is a quote set out by the Tribunal at about line 18:

‘internal injuries, bruises and two cigarrette [sic] burns –

the point being that “cigarette” is misspelt, and down at about line 23 we have a quote from the letter from the lawyer:

‘showed me two burnt marks caused by lighted cigarette bud [sic] –

but “cigarette” is correctly spelt there, the point being, your Honours, that if on both occasions the word “cigarette” had been misspelt, we would be in the territory in which Sir Charles Russell was when he cross-examined Pigott in respect of the defamatory letter purported to be drafted by Parnell which was used to do Parnell down and, of course, Russell cross-examined Pigott on a known misspelling in that letter and, of course, Pigott came up with exactly the same spelling.

Now, here, if there had been “cigarette” misspelt the same way on both occasions, that would have raised a very high likelihood that there was a common author, but that is not so here. It is that sort of instance which illustrates that the Tribunal should have kept an open mind and not merely excluded, in our submission, on an entirely superficial basis. It has not performed its function which is, in old terminology now dead 30 years, a quasi-judicial function, but the Federal Court still necessarily talks about the function as one of a judicial one, requiring to be performed in full. That is the point, indeed, of the three Full Federal Court decisions we have presented to your Honours. It is required to deal with the evidence in full. To merely sweep away something which is as central as these documents are to the case for the applicant is a dereliction of its function and it is appropriate that it be reviewed on that basis of a dereliction. That completes our summary, your Honour.

GLEESON CJ: Thank you very much. Yes, we do not need to hear Mr Smith.

The Court is of the view that there is insufficient reason to doubt the correctness of the decision of Justice Branson to warrant a grant of special leave to appeal and the application is dismissed with costs.

AT 11.32 AM THE MATTER WAS CONCLUDED