SZBYR & Anor v MIMIA & Anor [2006] HCATrans 680 (8 December 2006)

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SZBYR & Anor v MIMIA & Anor [2006] HCATrans 680 (8 December 2006)

Last Updated: 15 December 2006

[2006] HCATrans 680

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S582 of 2005

B e t w e e n -

SZBYR

First Applicant

SZBYS

Second Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 DECEMBER 2006, AT 2.00 PM

Copyright in the High Court of Australia

__________________

MR C.D. JACKSON: May it please the Court, I appear for the applicants. (instructed by Kazi & Associates)

MR R.T. BEECH-JONES, SC: If the Court pleases, I appear with my learned friend, MR C. LENEHAM, for the first respondent. (instructed by Clayton Utz)

GUMMOW J: Yes, and there is a submitting appearance for the second respondent; namely, the Tribunal. Yes, Mr Jackson.

MR JACKSON: I filed some further submissions late in this matter. Does the Court have those submissions?

GUMMOW J: Yes.

HEYDON J: Mr Jackson, your point is this, is it, that before the Tribunal an account was given by the applicant to support his case, that was disbelieved in part by reference to a statutory declaration that was before the delegate to the Minister and your argument is that 424A(1) applies and no exception in subsection (3) applies.

MR JACKSON: Yes.

HEYDON J: The difficulty I have is to be sure or confident that the Tribunal failed to supply the information to the applicant on which it relied. At page 11, lines 18 to 28 she says:

I asked the applicant whether he could explain the discrepancies between his written claims and that of his oral evidence –

I take the oral evidence to be the material before her and the written claims to be the statutory declaration.

MR JACKSON: Yes.

HEYDON J: Now, it looks as though she did, as it were, confront him with the difference and ask him to explain it. Is that not compliance with 424A?

MR JACKSON: No, your Honour, not on the authority of SAAP because she did not raise the inconsistency in the information in writing in - - -

HEYDON J: “[G]ive to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information”.

MR JACKSON: Yes, that is discussed in SAAP as I recollect.

GUMMOW J: What is SAAP authority for?

MR JACKSON: It is authority for the proposition that if there is information that forms part of the reason for the decision, or the reason for the decision, then if it does not fall within any of the exceptions then it must be provided to the applicant and it must be provided in writing. The reason it must be provided in writing, as I remember it, without looking through the decision, has something to do with the regulations, I think, or, in fact, it has to do with another section that requires communications to be in writing. So from the point of view of that particular difficulty, my submission is that it does not - - -

HEYDON J: If you refer a person to a statutory declaration, which is a written document, that that person himself prepared, is that not – you say there should have been some repetition of it reduced to written form and given back to him?

MR JACKSON: Yes, on the authority of SAAP the majority say that that is the process that has be followed. I think in SAAP – and I could be wrong about this – the evidence, I think, was the evidence of a witness that was either inconsistent with or said something different to the evidence of the primary applicant. In Al Shamry, which was considered and followed or affirmed in SZEEU, the court held that any information that was provided as part of the original application was not information provided on the review.

My understanding was the statutory declaration was provided with the application, so that unless the Court reconsiders or considers the decisions of Al Shamry and SZEEU, then information provided for the purposes of the original application to the delegate does not fall within the exception in 424A(3). The statutory declarations have not been reproduced in the application book.

HEYDON J: You accept, do you though, that the contradiction was raised with the applicant and that he was invited to comment on the difference?

MR JACKSON: I do, and that raises the other important question that the Court might like to re-examine, which is the question of just how strict the requirement of compliance with section 424A is because on the authority of SAAP it appears that it is very strict indeed. So that there was some discussion - - -

HEYDON J: It sounds as though you are trying to get special leave by attacking decisions that are in your favour, which would work for today but would take a different stand later.

MR JACKSON: It may be unorthodox. Maybe I should not, but I am simply emphasising that on the authority of SAAP as it stands, provided the Court accepts that the inconsistencies in the earlier statutory declarations formed part of what the Tribunal considered its reasons – and the section talks about what the Tribunal considers – that provided that the Court accepts that, then there appears to be no room for any exercise of a discretion other than with reference to the conduct of the applicants.

GUMMOW J: Did Justice Madgwick deal with this point?

MR JACKSON: That is at page 42. What his Honour said on page 42 of the application book is, first of all, he summarises the magistrate’s reasoning. The magistrate talked about “the essential reason”, or elsewhere I think he used another expression, and apart from that his Honour does not really deal in any more detail with the point. What his Honour says is that his Honour does not think there was any non-compliance with section 424A, but if one returns to the decision itself, the reasons of the Tribunal, with respect that is not correct.

HEYDON J: Is not what Justice Madgwick says at paragraph 5 on page 42, rightly or wrongly – he says even if there was a non-compliance with 424A, nonetheless the Tribunal’s reasoning process can be supported on other information to which 424A did not apply.

MR JACKSON: Yes.

HEYDON J: As I understand it, you take issue with that because you say that the clash between the statutory declaration and the oral material was such as to infect the Tribunal’s view of the applicants’ credit so badly that there was no independent line of reasoning unfree, as it were, of the 424A error.

MR JACKSON: I do say that, but I also say that it is by no means a straightforward task to determine whether information that provided that where you have alternative bases for a decision, that when one considers compliance with section 424A, it is by no means clear that simply the fact that there was an alternative line of reasoning that that was open and would get you to the same result is by no means clear that section 424A has been complied with. The way that his Honour Justice Allsop in SZEEU, I think, at paragraph 224 - - -

GUMMOW J: Anyhow, what did his Honour say?

MR JACKSON: The way his Honour dealt with it was to say that it was a question of the exercise of the discretion where you had two independent lines of reasoning that both would get you to the result. His Honour dealt with it by way of the discretion because his Honour, in my submission rightly, recognised – it is at paragraph 224, I think, of SZEEU.

HEYDON J: No, I think it is 233 and 234.

MR JACKSON: Yes.

HEYDON J: Paragraph 233:

there was a basis for the Tribunal’s decision which can be seen to be entirely independent of the failure to follow s 424A, in my view, that is sufficiently analogous to the first of the alternatives referred to in [58] of Aala to warrant withholding of relief.

MR JACKSON: Yes, but, in my submission, that is not consistent with SAAP. In effect, what is with the majority in SAAP - - -

GUMMOW J: You say you challenge SZEEU, paragraphs 233 and 234?

MR JACKSON: Yes, I do. I understand why his Honour takes that path, because it simply cannot logically be said that if you reach a decision by more than one means then all of those means are part of the reason for your decision, depending on the particular case.

GUMMOW J: Now, it looks as though Justice Madgwick at paragraph 5 of his reasons was following the reasoning of Justice Allsop in the earlier case, does it not?

MR JACKSON: Yes, and if one goes particularly to paragraph - - -

GUMMOW J: Now, is there another view of this in the Federal Court?

MR JACKSON: There is another view of this in the High Court, in my submission, in this Court.

GUMMOW J: No, in the Federal Court. The question is whether SAAP is giving rise to difficulties in the Federal Court. Now, is the Federal Court at one as to what Justice Allsop is saying there or are there contrary views in the Federal Court as to what SAAP means? Is there is, we may have to get interested in it. Do you see?

MR JACKSON: Yes. Your Honours, there is some discussion of principle, in fact, in the magistrate’s decision which is - - -

GUMMOW J: Is there any other view in the Federal Court contrary to that of Justice Allsop as to this bifurcation possibility that the denial – that 424A, as I understand the majority in SAAP, if not complied with, destroys jurisdiction.

MR JACKSON: Yes. Well, in my submission, the difficulty regardless of whether there are conflicting authorities within the Federal Court - - -

GUMMOW J: And destroys jurisdiction even if there is otherwise at general law no denial of procedural fairness.

MR JACKSON: Yes, and the difficulty is that if the Federal Court is following Justice Allsop’s line then, in my submission, that is not consistent with SAAP and particularly paragraph [210] of SAAP where the issue is discussed by his Honour Justice Hayne.

GUMMOW J: Yes.

MR JACKSON: Whether or not that was a proposition that there would be no practical purpose – so, in other words, one does not ask the Stead v State Government Insurance Commission question or, indeed, any other question - - -

GUMMOW J: Well, it is 211 really, the decision was invalid, all right?

MR JACKSON: Yes.

GUMMOW J: There was no basis for the discretion.

MR JACKSON: Yes. So his Honour Justice Allsop when he said - - -

GUMMOW J: I think we had better hear from Mr Beech-Jones at this stage, Mr Jackson.

MR JACKSON: Thank you.

MR BEECH-JONES: Your Honours, I think as it unfolded the point of principle my friend seeks to raise is, as it turns out, the accuracy of what Justice Allsop said in SZEEU. Can I just take your Honours back to paragraph 231, because that is the essence of his Honour’s reasoning as to where that proposition comes from about there being an independent strand of reasoning. His Honour refers, if I can call it, to SAAP and the passages from Justice McHugh’s judgment, which I will take your Honours back to, and then ascertains three propositions concerning that.

The first is the proposition that, in effect, compliance with section 424A is strict and there is no undertaking of “an inquiry as to whether the breach was so trivial as not to warrant relief”. In my respectful submission, that is the Stead inquiry and that is the matter that Justice Hayne was talking about in paragraph [210], that is, does one say, “Well, yes, there was a failure to comply but your credit was so thoroughly destroyed it would not have mattered anyway”, or for various other reasons to do with the merits of the underlying factual conclusions, and then - - -

GUMMOW J: I am sorry, I am just trying to work out 231. Line 3 there:

First, subject to what follows, if 424A is not complied with, the Court does not engage in an inquiry as to whether the breach was so trivial as not to warrant relief. The failure to comply with the statutorily mandated provisions leads to the conclusion that there was a lack of statutory authority to make the decision.

That is correct, so it goes to jurisdiction.

MR BEECH-JONES: Yes, and then his Honour says:

Secondly, as a matter of discretion, relief will be withheld for reasons going to the conduct of the applicant as discussed in Aala and SAAP.

That is matters such as delay and so forth and their conduct. Then the third proposition is this case:

Thirdly, if it can be shown that there is a basis, otherwise unimpeached, upon which the decision was reached, unaffected by the failure to accord procedural fairness or to comply with the required statutory procedure, relief can be withheld.

GUMMOW J: Where does SAAP say that?

MR BEECH-JONES: Can I take your Honours then to SAAP in Justice McHugh’s judgment at paragraphs [57] - - -

GUMMOW J: Now, you have to find three people saying this. One will not do.

MR BEECH-JONES: I will not, your Honour. I can tell you in express terms that is not said - - -

GUMMOW J: Exactly.

MR BEECH-JONES: - - - but it does have its origin in something that your Honours said - - -

GUMMOW J: Not me.

MR BEECH-JONES: - - - and her Honour Justice Gaudron said in Aala.

GUMMOW J: Yes, but Aala is not a 424 case, is it?

MR BEECH-JONES: No, but there was a discussion of that discretion in Aala. In fact, I should take your Honours to the paragraph [81].

GUMMOW J: Yes. That is to afford procedural fairness.

MR BEECH-JONES: Yes, your Honour.

GUMMOW J: That is not what 424A is about. It operates where there is no denial of procedural fairness.

MR BEECH-JONES: But, your Honour, the point being, in terms of the discussion of discretionary belief, is that the question ultimately one strand for the basis of - - -

GUMMOW J: Well, you say denial of procedural fairness goes to jurisdiction as well but nevertheless discretionary considerations may withhold relief.

MR BEECH-JONES: Yes, your Honour. What in this area of discourse we are all talking about in the end is jurisdictional error and, indeed, whether jurisdiction – ultimately has the jurisdiction been exercised and in the determination or the formulation of the opinion of whether the Tribunal is satisfied of the Convention definition as to whether that state of satisfaction can be upheld. If one steps back from it and says there is an independent chain of reasoning which is not subject to any procedural default or anything else that upholds this state of satisfaction, then the jurisdiction has been performed, regardless of whether there is some other procedural default that gets one there.

The essence of it, in my respectful submission, comes back to, in reality, whether there is an injustice in the sense discussed in the Hoffmann-La Roche Case that your Honour cited in Aala; that is a case dealing with procedural fairness but in substance no different in relation to section 424A. Your Honour posed the question to my friend, which was, “Is there any difference of opinion in the Federal Court over this?” With respect, the answer is, “No, there is no difference of opinion.”

Can I just say a couple of matters. Firstly, Justice Madgwick’s decision preceded Justice Allsop’s decision in SZEEU. At the time Justice Madgwick decided this there was, if I could call it, a raging debate about 424A. It had a couple of elements. The first was does the exception in subsection (3) concerning material provided in support of an application, does that apply to material supplied in support of the application for the visa or the application for review? The suggestion that it was only the application for review was raised in Al Shamry and confirmed in SZEEU, but that was one aspect of the debate.

Another aspect of the debate concerned whether, if there was a discussion in the hearing along the lines that your Honour Justice Heydon referred to concerning what you had raised before the initial decision-maker, did that mean that it was, in effect, republished for the purpose of the application for review? There was a further suggestion that one might evaluate the weight or significance of the non-compliance in terms of the overall reasons of the Tribunal.

Now, that was what was at the time before Justice Madgwick and, with respect, that can explain how Justice Madgwick appears to have adopted it on the basis that, “Look, even if there is a non-compliance with section 424A, it does not matter because there is an independent strand of reasoning.” Then what happened is, four or five months later, SZEEU comes along and has decided most of those questions actually adversely to the Minister, other than this question here about discretion in paragraphs 230 to 233.

Can I just finally take your Honours back to SAAP. It was paragraph [80] I sought to take your Honours to and that is Justice McHugh’s judgment. I think I might have said that was your Honour’s judgment. Paragraph [80] has at the end:

Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.

Then his Honour refers to your Honour Justice Gummow’s judgment in Aala and the citing of F Hoffmann-La Roche. What we would respectfully submit is that the third proposition of Justice Allsop is, with respect, simply another example of a case where there has been no suffering of an injustice and it is really quite different to a case which is the first proposition of Justice Allsop’s, that is, a case where one might try to evaluate the factual weight that the breach, if it had not have occurred, what would have occurred in terms of the facts as found, but this is really a different case. This is, with respect, no different to the type of case where even if the, for example, procedural fairness or the statutory provision had been complied with, the statutory regime would have compelled a different outcome. In this case, if one thinks about it, if the Tribunal’s mental state is that there is an independent strand of reasoning then the statutory scheme compels that outcome.

HEYDON J: The independent strand of reasoning is this, is it, that part of his troubles stem from persecution by his first wife’s family? That is not political and not Convention based.

MR BEECH-JONES: Yes, your Honour.

HEYDON J: Taking his evidence at its highest independently of any credit, that can be pushed aside on that ground. So far as the persecution was by the police, it is not credible because he left India with a passport perfectly openly and that would not have been permitted if the police really had wanted to persecute him. Is that the idea?

MR BEECH-JONES: Not quite, your Honour, not the second aspect of that. It was, “Taking everything at its highest, the persecution of you by the police and of your family stems from your debate or your dispute with your first wife’s family.” That, we submit, is the independent reasoning, not the police were seen as an aspect of the family.

HEYDON J: The police were not persecuting him because he was or was not a Hindu, or was or was not a member of the Congress Party. They were persecuting him because the family were putting them up to it?

MR BEECH-JONES: Precisely, and, your Honour, that is evident, in my respectful submission, from the passage at the top of page 18, the first full paragraph on that page.

HEYDON J: Do you concede that 424A was not complied with?

MR BEECH-JONES: No, I do not, your Honour, but if I could put it in these terms. I concede that on the basis of the rest of SZEEU the
consequence is that 424A was not complied with. If there was a grant of special leave, my client will need to consider its position about a notice of contention about that. Just to complete the picture, before Justice Madgwick we argued there was not one, but that was based upon a series of arguments that were subsequently, as it were, rejected in SZEEU.

HEYDON J: So, contrary to your preferred position, the non-compliance simply lay in not providing a copy of the statutory declaration or a summary of it?

MR BEECH-JONES: I do not want to argue perhaps against myself, your Honour, but it is the requirement in 424A(1)(a), as I understand it, that you have to give - - -

GUMMOW J: Just a minute. Section 424A(1)(a), “give to the applicant” - - -

MR BEECH-JONES: - - - particulars. The way that has been developed is, if you are going to rely on a contradiction you have to say, “You said this. Now you say this. That is the contradiction.” So it has to be - - -

HEYDON J: She did that orally.

MR BEECH-JONES: She did that orally, yes.

HEYDON J: But it has to be in writing, has it?

MR BEECH-JONES: Well, that is the fight we fought and lost in SAAP, it seems.

HEYDON J: Why does it have to be in writing?

MR BEECH-JONES: Because of subsection (2), “The information and invitation must be given to the applicant”, and then by one of the methods specified in section 441A – and I do not have 441A with me, I regret, but my recollection is that has methods about writing and letters by post. Unless there is anything further, your Honours, those are my submissions.

GUMMOW J: Yes, Mr Jackson.

MR JACKSON: Yes. Well, my learned friend took your Honours to paragraph [80] of SAAP but it is important to read on to what his Honour Justice McHugh said after that and that pretty much illustrates the problem with the argument that there is just one species of jurisdictional error because, in a sense, that appears not be correct. Here is precisely the submission that is being made in this case in paragraph [82], last sentence:

But it said that whether a breach of that section was merely technical and did not affect the outcome or could make no difference was relevant to whether relief should be granted.

[83] However, where the relevant breach is the failure to observe fair decision-making procedures, the bearing of the breach upon the ultimate decision should not itself determine whether the constitutional writs of certiorari and mandamus should be granted . . . There is no reason to rewrite the limitation ordinarily implied on the statutory power to deny jurisdictional error for “trivial” breaches of the requirements of procedural fairness.

HEYDON J: This seems to have been procedurally fair though, what happened here. It was a breach of the procedural requirement, perhaps, but it was not unfair.

MR JACKSON: Yes. Reading the two paragraphs together, it does appear that if it is a breach of an inviolable statutory provision, which shorthand is called fair decision-making procedures here, then it does not matter whether a person has, in fact, had an opportunity to answer the questions exactly the same. Again, it is expressed in much the same way by his Honour Justice Hayne in the last paragraphs of this decision.

What I can say has happened in the Federal Court, as this Court would be well aware, is it is absolutely awash with section 424A cases where, in substance, fairness has been accorded, one could argue, but where section 424A has not been complied with and relief is granted on a daily basis. So there are aspects of SAAP or there may be points that could be clarified in SAAP and this is, in my submission, a good vehicle because the issue is squarely raised by the decision of the Tribunal.

GUMMOW J: We will take a short adjournment.

AT 2.32 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.34 PM:

GUMMOW J: There will be a grant of special leave in this matter but that grant of leave would be subject to revocation unless the Court was satisfied as to the adequacy of a redrafted notice of appeal. It is not in good shape at the moment, Mr Jackson.

MR JACKSON: No. Thank you, your Honour.

GUMMOW J: The Court will also want to see your notice of contention, Mr Beech-Jones. To that end, there will be a grant of special leave but the matter will be stood over for further directions before Justice Heydon at 9.00 am on Friday next, which is 15 December, in Sydney. Is that convenient to counsel?

MR BEECH-JONES: I have a bit of a difficulty on that day, your Honour, if there is any time later in the day?

HEYDON J: Noon, for example?

MR BEECH-JONES: Noon would be - - -

GUMMOW J: How about you, Mr Jackson? Noon next Friday, is that convenient?

MR JACKSON: Yes, your Honours.

GUMMOW J: All right. We will take that course then. So there will be a grant of special leave subject to further directions before Justice Heydon on noon on Friday next, 15 December, to consider the terms of the notice of appeal and of the contention. Thank you, gentlemen.

AT 2.35 PM THE MATTER WAS CONCLUDED