SZDLA & Ors v MIMIA & Anor [2006] HCATrans 21 (3 February 2006)

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SZDLA & Ors v MIMIA & Anor [2006] HCATrans 21 (3 February 2006)

Last Updated: 14 February 2006

[2006] HCATrans 021

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S432 of 2005

B e t w e e n -

SZDLA

First Applicant

SZDLB

Second Applicant

SZDLC

Third Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 FEBRUARY 2006, AT 12.47 PM

Copyright in the High Court of Australia

__________________

MR R.C. TURNER: If it please the Court, I appear for the applicant. (instructed by Ray Turner)

MR D. JORDAN: May it please the Court, I appear for the first respondent. (instructed by Australian Government Solicitor)

KIRBY J: I think there is a submitting appearance for the Tribunal, is that correct?

MR JORDAN: That is so, your Honour.

KIRBY J: Yes, Mr Turner.

MR TURNER: Your Honour, we say that there are two points of principle in this case. The first point of principle is the obligation of the Tribunal to issue a meaningful invitation to all of the applicants. Your Honours, in the bundle of documents that we put forward - - -

KIRBY J: It is not actually a case that seems to drip with merit. I am very conscious of the position of the applicants, and especially the female adult applicant, but she indicated that she was to be the contact person and the materials do seem to indicate that the husband signed the document that acknowledged that she was to be the contact person. I am referring to page 28 of the supplementary materials.

MR TURNER: Yes, your Honour, if I could address that point. That page starts with the heading “SECTION E” “Applicant’s declaration” and says:

Please read and sign this declaration

If this application includes more than one applicant, this declaration must –

I emphasise that word “must” –

be signed by all applicants. If any of the applicants is under - - -

KIRBY J: There is a second signature to “Applicant 2”, and of course the child was less than the age of 18 years.

MR TURNER: Yes.

KIRBY J: You are not raising any point concerning the child, or are you?

MR TURNER: Well, simply that even if the second applicant can be said to have consented to the first applicant being an authorised recipient, there is no signature there on behalf of the third applicant, but the form points out - - -

KIRBY J: That takes us back to the provisions of the Act that permit the notice to be given in a form of documentation and to a person acting on behalf of the applicant, whether or not this form adequately meets the contemplation of that provision of the Act.

MR TURNER: Yes.

HAYNE J: In a case where both parents of the infant sign the document.

MR TURNER: Your Honour, there were three applicants and there were three applicants for protection visas. The first applicant had to meet one set of criteria, that she had to show that she was owed protection obligations - - -

KIRBY J: But she was the fulcrum of the case, was she not?

MR TURNER: She was, yes.

KIRBY J: Your point is if only the husband had gone along to the Tribunal his added evidence might have supplemented the arguments on the merits.

MR TURNER: On two bases, your Honour. Firstly, he could have given some evidence because, as your Honour would have seen, he was the major player in her escape from the mental hospital but - - -

KIRBY J: Yes, I understand that, but the point that is being made against you is he was given notice, he did sign the application, he effectively accepted his wife as the contact person and if he did not turn up, that is his lookout.

MR TURNER: That is the case that is raised against us, yes, your Honour but - - -

KIRBY J: What is wrong with it?

MR TURNER: Your Honour, we say that that form and the way it is set out obliges the second applicant to sign in that position. There is nowhere else for him to sign. Further, the second applicant - - -

KIRBY J: So is your point that if only his signature had been lifted four or five lines up so that it is beside that of the female applicant we would not be here? It seems a fairly empty point.

MR TURNER: Your Honour, it needs to be looked at, in my submission, along with what was actually said about the second applicant. It was said in the material both before the decision-maker and before the Tribunal that the second applicant himself feared harm as a result of his part in his wife’s escape. As has been pointed out by my friend, it was only said in two small paragraphs but, nonetheless, it was said that he himself had a fear. The Tribunal in its decision found that the only person who made claims for protection was the wife. In my submission, from that point on, and perhaps even before that point, the Tribunal had formed a view that there really was only one applicant in these proceedings, whereas there were, in fact, three.

KIRBY J: I can understand how in retrospect your client, the male applicant, thinks, “If only I had gone along”, but that is not the issue in the case. We are not here to, as it were, revisit his election and decision if he was given the notice that the Act, by the word “must”, requires. When we look at that document at page 28, it just really is not possible in the facts of this case to suggest that he was not given the notice.

MR TURNER: The other point that I would make, your Honour, is that – with respect, if that be right, then when the invitation for him is given it should be addressed to him. All he has done there is to authorise somebody else to receive it.

KIRBY J: .....then given to him, as the Act contemplates, in a document addressed to him by way of the contact person, namely, his wife. Just assume the applicant is a child of very tender years, a document to such a person would be a charade, it would mean nothing. Say it was a baby. Therefore, the Act quite wisely and necessarily contemplates that and provides for the document to be served on a person who is effectively the agent.

MR TURNER: I would accept that, your Honour. Here, where the second applicant had, albeit briefly, raised his own fear with the Tribunal that the invitation – and the invitation is set out at page 34 of the bundle and it is addressed to the wife specifically and it talks about the:

APPLICATION FOR REVIEW OF DECISION TO REFUSE PROTECTION VISA (REFUGEE STATUS) –

it then incorrectly names more than three applicants, but I take no issue with the fact that there is an extra name there, and then says:

Please note that you must tell all persons named above about this letter and, if they wish, reply to the Tribunal for them.

In my submission, that is an insufficient invitation to the second applicant. The second applicant is entitled to be told that he has a right, independent of his wife, to go to the Tribunal.

KIRBY J: It depends on the language of the Act, I realise that, but millions of notices are given every year in this country to solicitors of the parties because they are nominated by parties. The Act contemplates that a document may be given to a person who becomes then the contact person, and that was done with the concurrence of your client, the adult male applicant. He did not have to concur. He did. It just seems to me the logic and scheme of the Act is that thereafter it can be trusted, and in most family situations it can be trusted, that giving the notice to one is enough.

MR TURNER: Yes, your Honour, but, in my submission, section 425 of the Act is quite clear.....says there must be an invitation given to the applicant.

KIRBY J: It is to him but via his contact person in a document addressed to that contact person as he has agreed.

MR TURNER: Your Honour, I do not really think I can take that point any further.

KIRBY J: No, I think we understand. There was a separate point on natural justice. Is that wrapped up in the same point?

MR TURNER: That is wrapped up in that point.

KIRBY J: There is nothing separate or different?

MR TURNER: No, your Honour. The second point of principle, we say, is that the decision of this Court in SAAP - - -

KIRBY J: Yes, we know of that. Both of us were sitting in that case.

MR TURNER: Yes. Your Honour, that case was handed down some three days after Justice Conti heard this matter and for that reason the argument was not raised.

KIRBY J: Yes, and Justice Hayne in that case said, and I think I said, “must” means “must”. So we know that, but the issue is whether “must” was discharged here by the notice to the person nominated with the approval of the male - - -

MR TURNER: Your Honour, I take a different tack on the SAAP point, that here we have a second applicant. The second applicant’s visa will be approved or not approved simply on him being a member of the family of a person to whom we have protection obligations. If the evidence of the first applicant is not sufficient or establishes that we do not have protection obligations to that first applicant, then that is fatal to the application of the second applicant. In my submission, that forming the reason for refusing the second applicant’s application, the second applicant should have been given notice of what had been said.

KIRBY J: I can only repeat, he was given notice but via his wife, with his concurrence, as he nominated.

MR TURNER: Yes, your Honour, but, with respect, I am putting the case on this point somewhat differently. I am not here going to the invitation; I am going to the evidence given by the wife at the hearing. That evidence formed the reason for refusing the second and third applicants’ applications. In my submission, if we apply the reasoning in SAAP, the second and third applicants should have been given written notice of the evidence that had been given and an opportunity to comment on it. Now, the second applicant, in particular, could have given some evidence. They are my submissions.

KIRBY J: Thank you very much, Mr Turner. The Court does not need your assistance, Mr Jordan.

The applicants claimed refugee status on the ground of fear of persecution in Russia for reasons of religion. They were Jehovah’s Witnesses. The claim was rejected by the delegate of the Minister and by the Refugee Review Tribunal. The Federal Magistrates Court and the Federal Court of Australia, the latter constituted by Justice Conti, refused judicial review.

The only issue upon which special leave is sought relates to the suggested want of procedural fairness of the Tribunal and its failure to comply with the statutory requirements as to procedure set out in the Migration Act 1968 (Cth), section 425. If these points could be made good they could amount to jurisdictional error and give rise to an arguable claim for relief: see SAAP v The Minister [2005] HCA 24; (2005) 79 ALJR 1009 at paragraphs [204] and [206] in the reasons of Justice Hayne.

The specific complaint is that no invitation to attend the Tribunal hearing was sent to the male adult applicant. He did not attend the Tribunal hearing. It is said that if he had attended and given evidence confirming his wife (who did give evidence) the decision on the merits might have been different.

The Act requires, by the use of the word “must”, that the Tribunal give notice of a hearing to an applicant. However, unsurprisingly, it provides for the relevant document to be given “to the applicant or to a person authorised by the applicant to receive documents”. See the Act – section 441A(2)(a).

The relevant form contained what appeared to have been the husband’s signature authorising the Tribunal to communicate with the wife as contact person. Notice was certainly given to the wife. In these circumstances, the statutory requirement with respect to the husband was complied with.

There is no substance in any of the other complaints. It is therefore unnecessary for us to consider the relevance, if any, of the very great and unexplained delay in bringing the judicial review proceedings. Special leave is refused and must be refused with costs.

AT 1.04 PM THE MATTER WAS CONCLUDED