SZAJB v MIMIA [2006] HCATrans 134 (10 March 2006)

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SZAJB v MIMIA [2006] HCATrans 134 (10 March 2006)

Last Updated: 30 March 2006

[2006] HCATrans 134

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S338 of 2004

B e t w e e n -

SZAJB

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MARCH 2006, AT 12.08 PM

Copyright in the High Court of Australia

MR N. PERRAM: May it please the Court, I appear with my learned friend, MR R.M. FOREMAN, for the applicant. (instructed by Parish Patience Immigration)

MR T. REILLY: May it please the Court, I appear for the respondent. (instructed by Sparke Helmore)

HAYNE J: Yes, Mr Perram.

MR PERRAM: Your Honours, three issues arise which need to be dealt with on this application. The first are a group of procedural questions relating to consequences of the points now being sought to be articulated not ever having been raised in any of the courts below. The second are the need for the applicant for special leave to establish that he should be entitled to apply for leave to appeal out of time. In one sense those questions may fall away depending upon what the Court’s view is about the special leave question and with your Honour’s - - -

HAYNE J: You come at once to the third question which is, is there a special leave point?

MR PERRAM: Yes. The question which the applicant seeks to articulate is the question of what the proper construction of section 424A(3) of the Migration Act is. The difficulty which arises with respect to the provisions of subsection (3)(a) have been variously expressed in different places, but compendiously may be put this way, which is does subsection (a) contain two requirements which must be satisfied or does it merely contain one so that the words “just about a class of persons of which the applicant or other person is a member” is to be read not as a separate matter, but rather as an emphatic matter clarifying the meaning of the first words, namely “not specifically about the applicant”.

It would be a fair statement to say that the state of the authorities in the Federal Court now is that after a period of debate and the debate is concluded and in the Federal Court the second criteria, if I may call it that, is not read as a criterion but is read as underlining the fact that the information must not specifically be about the applicant.

HAYNE J: Assume that that view were contestable, is it an essential step in your argument that you contest that view?

MR PERRAM: Yes, it is an essential step.

HAYNE J: Assume then it to be contestable, how would you relate the requirements of 424A(3)(a) on that alternative view of its meaning to the facts of this case?

MR PERRAM: That is the point at which the application runs into its second difficulty, which is the information which is relied upon in this case is the information relevantly at page 8 of the application book. Your Honours will recall that the information on its face is information to the effect that political parties in Pakistan after the coup continued to exist. Now, the use to which the Tribunal put that information was to allow a deduction to be drawn that if political parties continued to exist after the coup, it would have been possible for the applicant to obtain documents proving his membership of the political party and that then formed the next step in the argument, namely a rejection of the applicant’s assertion that he was such a member.

HAYNE J: Is it open to construe the Tribunal’s treatment of this matter and the material itself as being material about the class of persons who are party members or party activists in Pakistan?

MR PERRAM: We put it this way. We say no it is not, but saying that, the applicant has to accept that there is a line of cases in the Full Federal Court which would suggest to the contrary. That is a line of cases which – if I could put it this way. There are two ways one can approach the question of what information which is just about a class of persons of which the applicant or a person is a member. One is the obvious, easy way which is if the information in terms is expressly about a class of persons, for example, it is about Muslims or it is about Hindus, no difficulties arise. A more difficult situation arises when the information, on its face, does not appear textually to be about a particular class but instead to be about something else entirely.

This information at page 7 of the application book is of that nature. The information here appears to be information about political parties. On its face, one might not think that that was information about a class of persons, but the way the Federal Court has dealt with that is to say that when one is trying to gauge what is meant by “about a class of persons” in subsection (3), clearly information can be about anything. The question of what it is about rather depends upon the reason one is asking the question and here, as the Federal Court has said, that question is the question posed by subsection (1), namely what use is the Tribunal putting the information to.

Now, using that reasoning, the way the Federal Court would have approached this question had it been raised and would have dealt with it contrary to the contention of my clients is this, that the applicant was a member of a class of persons who was the class of persons who belonged to political parties. The information at page 7 tells one something about political parties from which one can then deduce something about a class of which the member is an applicant, and for that reason is to be described in the language of subsection (3) as just being “about a class of persons”.

So that is how the Federal Court has managed to get things which, on their face, do not appear to be about classes of persons, in fact to be read as being about classes of persons. The applicant has an objection to that and the argument is this. One can well sympathise, when one comes to construe the rather curious expression “just about a class of persons”, why one needs to try and place some limiting notion on what that means. One can have, perhaps, considerable sympathy in trying to work out what it is about. One useful way of doing that is to ask oneself what was the function which was being performed by the Tribunal. Approached that way, the result seems reasonable.

The difficulty, the applicant submits, is this. When one looks at subsection (1), it in fact draws, as a matter of statutory language, a distinction between provision to the applicant about the information, which is done by subsection (a), and then, by subsection (b), an indication by the Tribunal of why the information is relevant. So the Act seems to draw a distinction between the information and what it is that makes the information relevant.

The approach which has been taken in the courts below effectively treats why the information is being used as an aspect of the information and that is contrary, so the applicant submits, to the architecture of subsection (1) which proceeds expressly on the basis that the relevance of the information is different to the information itself, which is a roundabout way of answering your Honour’s question.

If the applicant were to succeed on that argument, then the question of statutory construction about subsection (3) would then arise. Of course, if the applicant did not succeed on that argument, then the question of the construction would remain interesting but moot. On the current view of the authorities in the Federal Court, even if one was to establish that subsection (3) works the way the applicant contends, it would make no difference.

For that reason one needs to establish that the approach which the Federal Court has taken in relation to what can be said to be “just about a class of persons” has to be demonstrated to be wrong and the applicant makes that argument in this case. Did your Honour wish to hear me on the actual construction question?

HAYNE J: If you have said all that you wish to say about the way in which 424A(3)(a) would apply to this applicant, it may be convenient if we leave over questions of extension of time and the consequences of the manner of conduct of proceedings in the courts below, at least for the time being. But have you concluded what you would say about the operation and engagement of 424A(3)(a) in this case?

MR PERRAM: Yes. I have made all the submissions I wish to make in relation to the question of – if I am right about the construction question, can the applicant bring himself, even on that view of things, within the construction. I have nothing further to say on that. I can address your Honour on the actual construction question but I am not sure if that is a useful thing at this stage.

HAYNE J: Yes, thank you, Mr Perram. Mr Riley, we need not trouble you on the questions that have been argued or on the other questions that might arise.

In our opinion, no point about the construction of section 424A(3)(a) of the Migration Act 1958 (Cth) would conveniently fall for consideration were special leave to appeal to be given in this matter. There are insufficient prospects of an appeal succeeding to warrant a grant of special leave to appeal in the matter. It follows that special leave to appeal is refused with costs.

MR PERRAM: May it please the Court.

HAYNE J: The Court will adjourn to reconstitute.

AT 12.19 PM THE MATTER WAS CONCLUDED