Applicant VHAJ & Ors v MIMIA [2004] HCATrans 533 (3 December 2004)

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Applicant VHAJ & Ors v MIMIA [2004] HCATrans 533 (3 December 2004)

Last Updated: 18 January 2005

[2004] HCATrans 533

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M263 of 2003

B e t w e e n -

APPLICANT VHAJ

First Applicant

APPLICANT VHAK

Second Applicant

APPLICANT VHAL

Third Applicant

APPLICANT VHAN

Fourth Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 3 DECEMBER 2004, AT 10.54 AM

Copyright in the High Court of Australia

__________________

MR A.F.L. KROHN: May it please the Court, I appear for the applicants in that matter. (instructed by Ravi James)

MR E.J.C. HEEREY: May it please the Court, I appear for the respondent in this matter. (instructed by Blake Dawson Waldron)

GLEESON CJ: Yes, Mr Krohn.

MR KROHN: Your Honours, this is an application which raises for the determination of the Court the construction of part of a statutory regime or codification for procedural fairness to be given by the Refugee Review Tribunal. Parliament has provided that at least part of the rules of natural justice are to be followed by the Tribunal to the extent of giving to an applicant particulars of information which the Tribunal considers may be the reason or part of the reason for affirming the decision under review. There are some exceptions to that obligation to give particulars of information and one of those is in section 424A(3)(a), the critical provision in the present application.

The question of construction is the question upon which the Full Court divided. The question is whether the section, which says that the Tribunal need not give the information if the information “is not specifically about the applicant . . . and is just about a class of persons of which the applicant . . . is a member”, has the meaning for which the applicant contends that there are two criteria to be met before information is excluded from the obligation of the Tribunal to provide the particulars of the information.

That is the view that was taken by his Honour Justice Moore in the Full Court below and, in my submission, it is the preferable view because on the construction taken by his Honour Justice Moore, the plain meaning of the words is given effect. That plain meaning accords with the general beneficial purpose of a provision. Section 424A basically has the purpose of providing that the Tribunal shall give particulars of adverse information subject to some exceptions. To construe the exceptions - - -

GLEESON CJ: What do you say the word “just” means? Do you say it means “only”?

MR KROHN: Yes, your Honour.

GLEESON CJ: How can information be only about a person or about a class of persons? If I say, for example, barristers in Victoria wear robes in court, that is information about a class of persons, namely barristers, but it is also information about robes and information about courts. Can you give me an example of a statement that would be just about barristers? That is a statement that would convey information about nothing except barristers?

MR KROHN: The answer to your Honour’s question in the context of this question of statutory construction involves, in my submission, having regard to the fact that the Tribunal is dealing with an application for a protection visa and for that reason the answer is that a class of persons of whom an applicant is a member might be akin to, say, a particular social group, so information about how a group operated within itself. So, perhaps to take your Honour’s example, Victorian barristers occupy chambers in Owen Dixon; Victorian barristers have continuing legal education seminars - - -

GLEESON CJ: Is that not information about chambers and is it not information about continuing legal education?

MR KROHN: If the information, your Honour, is about the operation of the group within itself then, in my submission, it is only about the class of persons. But, if I may also accept, your Honour, that the phrase does present difficulties of construction but even if one accepts perhaps the indication of difficulty that your Honour has just given me, it is still not an easy or simple or, in my submission, right resolution of that to say that, in effect, it is too difficult to construe the section and so the construction is to be by reference to what the Tribunal thought was relevant.

GLEESON CJ: Does not the expression “just about a class of persons” take its meaning from the context?

MR KROHN: Yes, your Honour.

GLEESON CJ: And the context uses that expression in contrast to another expression which is specifically about the applicant or another person.

MR KROHN: Your Honour, it takes its meaning from the context but the context is certainly the words of the subsection and the words of the section generally, but “and is just about” does not mean to indicate that the universe of information is divided into just two categories and it must be one or the other. In my submission, there are two criteria to be met. To give your Honours an example of the way that it might work, if there were information that the Tribunal had about somebody who claimed, say, to fear persecution because of being a trade unionist and the information was just about the operation of the union to which that applicant belonged, then I would concede, your Honours, that it would fall within the exception. But if the information is about the general way in which the government of that country deals with people at large, then it must not fall within the exception, in my submission.

That is another reason why, in my submission, this is an important question and appropriate for special leave because, as my learned friend indicated, the construction favoured by Justice Moore might well, and in my submission would, affect the assessment by the Tribunal of whether it is obliged to give particulars of general reports about the situations in a country if that is adverse and potentially a reason for rejecting an application. I stress, your Honour - - -

GLEESON CJ: What is sometimes called country information.

MR KROHN: Indeed. I would stress, your Honours, that this is not to submit that the Tribunal is intended to be under an intolerable burden because Parliament has not required reams of photocopying, it has simply required the giving of particulars of the information such that an applicant can understand what is the issue, what is the problem, what is it that I may need to respond to. In my submission, the train of cases adverted to in a number of the judgments below relating to country information are again a train of cases that really took an origin in one case, Tharairasa that was decided very soon after the provision came in, but again it is hard, with respect, to see that there is any clear judicial principle that country information by definition must satisfy these criteria for the exception.

Perhaps there is one other matter I might mention, your Honours, in relation to appropriateness for special leave and that is that even between the judgments of the majority, Justice Kenny and Justice Downes in the Full Court, but also between judges in other Full Courts in cases such as VHAP, VNAA, NARV, there is as yet no resolution about whether this exception is to be construed as providing a composite test or whether it is prescribing separate criteria. If Parliament is to draw an important limitation on an obligation of a Tribunal to give procedural fairness then, in my submission, obscurities or difficulties in the construction of that kind of exception are important in the administration of justice but they do also raise questions that affect many applications. It may indeed be helpful to the legislature to have the assistance of this Court’s observations about the construction of a
phrase rarely used but perhaps there is an indication it may be more frequently used, “and just about” something or other.

In my submission, your Honours, the starting point is that there is a statutory obligation to accord at least an element of procedural fairness but the exception, in my submission, is drawn in ordinary English which is capable of being given and should be given the construction favoured by his Honour Justice Moore. In answer to the respondent’s submission that the Tribunal is obliged to have regard only to relevant matters, this provision is aimed at what the Tribunal should do when it forms a provisional view. It is when the Tribunal considers that some information may be a reasonable part of a reason.

This provision is not involving, on the applicants’ construction, the Tribunal in having regard to irrelevant matters. Indeed, the Tribunal is obliged under another section of the Act to have regard to any additional information it gets if it chooses to get additional information. Now, the Tribunal in its assessment may ultimately decide that some of that information is not relevant, so, in my submission, the respondent’s submissions resisting the application for special leave on the basis that the Tribunal is, on the applicants’ construction, involved in going beyond what is relevant are, with respect, not correctly conceived.

Your Honours, the only other point that I would make is that should the application for special leave be refused, that in this case, given the importance of a matter of procedural fairness - and I refer to what your Honour the Chief Justice has said in S157 about the importance of clarity on the part of Parliament if it is intended to restrict procedural fairness - and if the Court is of the view that special leave should not go, in my submission, it is still the case that there was a difficulty of construction reflected by the division in the Full Court below. In those circumstances, in my submission, if the application is not successful, there should be no order as to costs. May it please the Court.

GLEESON CJ: Thank you. We do not need to hear you, Mr Heerey.

We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter. The application is dismissed with costs.

AT 11.07 AM THE MATTER WAS CONCLUDED