SZERD & Anor v MIMIA [2006] HCATrans 438 (14 August 2006)

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SZERD & Anor v MIMIA [2006] HCATrans 438 (14 August 2006)

Last Updated: 23 August 2006

[2006] HCATrans 438

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S167 of 2006

B e t w e e n -

SZERD

First Applicant

SZERE

Second Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Summons

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 14 AUGUST 2006, AT 9.41 AM

Copyright in the High Court of Australia

MS M.N. ALLARS: May it please the Court, I appear for the respondent. (instructed by Phillips Fox)

HIS HONOUR: Now, you are the person named in the Court process as SZERD or are you the interpreter?

THE INTERPRETER: I am the interpreter, your Honour.

HIS HONOUR: You are an interpreter in the Nepalese language, is that correct?

THE INTERPRETER: ....., your Honour.

HIS HONOUR: Is the applicant present in Court? We are not permitted by the Act to use the applicant’s name. This is for his own protection. Do you know, is there a Nepalese speaking person in the precincts of the Court? Call the proper name of the applicant outside the Court. Mr Interpreter, you would know that the reason why the name of the applicant is not used in the Court process is no disrespect to the applicant, but simply so that there is no record on the Court process which goes into the Internet of that person’s name. You might sit down just for a moment, if you would.

COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Yes, thank you. I would ask the interpreter to stand by just in case there is an appearance whilst this matter is being dealt with. I have a note from the Registrar, Ms Allars, that the applicant called – this note being dated 8 August 2006 – and advised that he would not be attending the reinstatement application this day. He was informed by the Registry of this Court that the Court could make orders in his absence and I understand he was encouraged to attend the Court, but he has indicated that he would not be attending and, having been called outside the Court, he has not attended. The appointed hour has passed. He was notified both in writing and orally on 8 August that the matter would be proceeding today in his absence and, therefore, I will proceed with it.

I have read the respondent’s submissions which were filed in Court and they are on the record. I am grateful to you for preparing those submissions which set out the issues in the case, correctly, in my view. Very properly, the Minister accepts that the delay on this occasion, being only of one day, in the requirement under the Rules for the filing of the special case and arguments of the applicant is a very brief delay and the Minister does not oppose the application for reinstatement on the ground that the delay of one day causes any prejudice or that the first applicant, the
moving party, has failed to provide an application for the delay. As I understand it, the Minister’s ground of objection is that the case does not disclose a ground which, in the interests of justice, would require the matter to be restored to the list, is that correct?

MS ALLARS: That is correct, your Honour.

HIS HONOUR: The issue that concerns me a little is, as you have indicated in the written submissions, that the delay in this case is so very short, it is only one day, and that the applicant is a person from Nepal, which I think I would be permitted by judicial notice to appreciate is a country that has had some difficulties in recent times, that he claims the source of his difficulties is persecution by Maoists because of his former position as an Indian Army officer and, therefore, on the face of things, the matter is one which would attract some scrutiny.

If I am to dismiss it now, effectively that involves, by rejecting his application for reinstatement, the removal of what would otherwise be his right and would have been his right had he filed one day earlier to have the matter considered by two Justices of the Court as a Full Court, if necessary, on the papers. Normally such an application would just be dealt with on the papers.

So the question that is concerning me is, given the very brief period of the delay, the absence of any prejudice, the fact that the country involved is Nepal and that his source of delay is said to be threats to him by Maoists, the fact that the matter would normally, he being unrepresented, be dealt with on the papers by two Justices, whether in those circumstances it would not be in the interests of justice to restore the matter so that two Justices would at least look at his application and satisfy themselves on the written argument.

MS ALLARS: Your Honour, we say there are no prospects of special leave being granted. I certainly accept that if this application were granted, that would enable another Justice to scrutinise the case. However, it is an application which has been dismissed by the Federal Magistrates Court and by the Federal Court and his Honour Justice Edmonds’ judgment indicates that there was no point of principle arising before him. The applicant failed in the Tribunal because the Tribunal found that he did not have a subjective fear of persecution having remained in Nepal after receiving the threatening telephone call, and having travelled - - -

HIS HONOUR: He remained there for 18 months after the alleged threats?

MS ALLARS: Yes, and he did travel extensively and returned to Nepal during that period. So it was for that reason that the Tribunal made the adverse finding as to the subjective fear. There has been no error of law argued, really, since then in the Federal Magistrates Court or in the Federal Court which gave rise to any question of error on the part of the Tribunal. So, in my submission, your Honour, although it would enable another Justice in chambers to scrutinise the case, it appears to be a fairly remote prospect of any particular point being identified in this case.

HIS HONOUR: Of course, I suppose one can say that the fact that there is a decision of the Federal Magistrates Court and the fact that there is a decision of the Federal Court cannot of itself be fatal to an application for reinstatement because that is the common basis of virtually all of these cases involving refugee applications and then one gets into looking at the merits of the opinions of the Federal Magistrates Court and of the Federal Court and that is a matter which normally a person is entitled to have two Justices scrutinise.

Now, given that the Rules of the Court provide this fairly strict timetable for the filing of the arguments of the applicant, it cannot be that the facility under other Rules providing for the matter to be passed upon by two Justices automatically trumps the requirement of the Rules that the application and arguments be filed within the specified time from the filing of the original application.

So it is a matter of reconciling these, but the two issues that concern me are, first, the very brief delay in this case, only one day, and, second, the very proper acceptance by the Minister that there was no prejudice in one day’s delay and, third, that Nepal is a country which has had a troubled recent past and, fourth, that the fact that the applicant remained in Nepal is not necessarily fatal to the establishment of jurisdictional or legal error because that can be the result of the sheer necessities of existence.

MS ALLARS: Your Honour, I accept those factors are present, but your Honour’s discretion to dispense with the rule in this case does allow your Honour to take into account the prospects of success in obtaining special leave and, in light of that, it is relevant that there is a factual finding adverse to the applicant in the Tribunal and no obvious error of law which would allow the Court to disturb that and certainly - - -

HIS HONOUR: There was in this case, was there not, a reference either by the Tribunal or the federal magistrate, perhaps by the Federal Court, of the resettlement of the applicant in India. Is that not correct?

MS ALLARS: Your Honour, that is an independent ground for affirming the decision under review and your Honour may well have in mind NAGV in turning to that.

HIS HONOUR: That is a matter which Justice Callinan and I, sitting in the disposition on the papers, thought might be looked at by the Court in an oral hearing given that Justice Madgwick in a case raised the question of whether that is really consistent with the decision of the Court in the case involving the homosexual Bangladeshi applicants, whether that is not, as it were, affected by the error of saying it is the duty of the person claiming refugee status to readjust themselves to the society which is prejudiced against them.

MS ALLARS: Yes.

HIS HONOUR: That may be a matter that will come under review. Now, was that referred to either by the Federal Magistrates Court or by the Federal Court?

MS ALLARS: I do not think it was, your Honour.

HIS HONOUR: Relocation - it was in your written submissions, I think.

MS ALLARS: There was a ground in that area raised in the Federal Magistrates Court.

HIS HONOUR: Can you just take me to that passage?

MS ALLARS: Your Honour, at appeal book page 43 at paragraph 26 the federal magistrate considers the country information relating to the ability of Nepalese to relocate to India.

HIS HONOUR: It is a big ask that all Nepalese with fear should go to India, really. I mean, the Refugees Convention rather assumes that you look at whether the person would have the fear in their own country of nationality.

MS ALLARS: Yes, I accept that, your Honour.

HIS HONOUR: That may well be an error. It is not like the cases where, within India, they say they can go to the next state or they can go to another town. This is go to another country.

MS ALLARS: Yes. Your Honour, in my submission, it is not, particularly bearing in mind that in this case the applicant had lived for most of his working life in India as a member of the Indian Army, so that had
been his place of residence. I note at the top of page 43 that, according to the country information, there are 8 million Nepalese living in India. But further, your Honour, this was an independent basis for the Tribunal’s decision. The primary reason why the applicant failed in the Tribunal was that the Tribunal found adversely to him that he did not have a subjective fear of persecution given that he - - -

HIS HONOUR: That was on the basis that he remained in Nepal and travelled there.

MS ALLARS: Travelled overseas and came back and there had not actually been any harm inflicted on him.

HIS HONOUR: What else can he do except go to India which, at least arguably, is contrary to the hypothesis of the Refugees Convention?

MS ALLARS: I think consistently with the Tribunal’s decision, he would not have a well-founded fear of persecution in Nepal itself and the ability to go to India was a secondary and independent basis for its decision. Certainly this case was rather difference from a case like NAGV because this is a case where the applicant had resided during his working life in India.

HIS HONOUR: Yes. What is the name of that Bangladeshi case, do you remember?

MS ALLARS: Your Honour, I think the one about the right of return to Israel is NAGV. That is the one that came to mind - - -

HIS HONOUR: No, this is - - -

MS ALLARS: S395, your Honour?

HIS HONOUR: Of? That is in the Commonwealth Law Reports now, is it not?

MS ALLARS: Yes, yes.

HIS HONOUR: Yes, all right. Well, I think I have got the problem and I am greatly assisted in it both by the written submissions and the way in which you have put the oral arguments. Is there anything else you want to say about it?

MS ALLARS: No, your Honour. If the Court pleases.

HIS HONOUR: Thank you very much, Ms Allars.

This is an application for the reinstatement of an application for special leave to appeal to this Court. The application was deemed to have been abandoned on 29 June 2006. In accordance with rule 41.10.4 of the Rules of this Court, the applicant was, in effect, one day out of time for filing his written case complying with rule 41. Very properly, the Minister, in written and oral submissions, has accepted that the applicant has provided an explanation for the delay of one day. Moreover, the Minister has accepted that she is not prejudiced by the delay. However, the Minister contends that the application should be dismissed on the ground that it does not enjoy reasonable prospect of success in obtaining special leave to appeal to this Court and, therefore, that the interests of justice do not warrant the making of the order sought.

The applicant husband, a national of Nepal, who has had the carriage of the matter on his own behalf and on behalf of his wife, has not appeared at the return of the proceedings today. This is so although his name was called outside the Court and he was notified by the Registry of the fact that the matter was listed for hearing. However, I am empowered to deal with the matter in his absence. I have proceeded to do so.

There being an explanation for the delay and no suggested prejudice, the issue is and is only whether or not the interests of justice require, or support, an effective extension of time by me at this stage. It is true, as Ms Allars appearing for the Minister has put it, that the application on its face does not appear a strong one. The applicant faces what seems to be a finding against him on the basis of his credit and assessments of his credibility to the effect that he did not have a subjective fear of persecution, as required by the Convention. If that finding were sustained, it would be virtually a fatal impediment to success in this Court in proceedings which would be limited to the consideration of natural justice and other like legal and jurisdictional questions.

However, in the course of its reasoning the Tribunal referred to the fact that the applicant could relocate from Nepal to India, a country with which the applicant had some association. By doing this, it was suggested, the applicant could escape any well-founded fear of persecution that he in fact experienced.

There is an issue, raised by the decision of this Court in Appellant S359 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473, as to whether such possible relocation is a proper consideration. By a decision of two Justices, that is a matter which has already been committed to consideration with oral argument by a Full Court. It is correct to say that it is not necessarily conclusive of the prospects of success of the applicant, given the preceding determination on the issue of credit to which I have referred. However, the consideration being referred to in the reasons of the Tribunal, apparently relied on in coming to its conclusion and uncorrected by earlier judicial review, this is not a matter where I can comfortably say that the applicant should be put out of having the opportunity of having his case determined by a Full Court comprising two Justices, if necessary on the papers.

I will therefore order that the compliance with the Rules of Court be dispensed with so that the application can proceed upon condition that the applicant, within seven days of notification of these orders, files his arguments in support of his application in accordance with the Rules and thereafter complies strictly with the Rules and any reasonable directions of the Registrar of this Court for the preparation of the case for consideration by the Court.

The applicant, being in default and being required to seek an extension of time, must pay the Minister’s costs of this application.

AT 10.05 AM THE MATTER WAS CONCLUDED