SZFMB v MIMA & Anor [2008] HCATrans 171 (18 April 2008)

Last Updated: 30 April 2008

[2008] HCATrans 171

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S436 of 2006

B e t w e e n -

SZFMB

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL 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, 18 APRIL 2008, AT 2.36 PM

Copyright in the High Court of Australia

SZFMB appeared in person.

MR G.R. KENNETT: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)

GUMMOW J: Yes, Mr Kennett, and there is a submitting appearance for the second respondent.

MR KENNETT: Yes, your Honour.

KATRINA HAINI ZHAO, sworn as interpreter:

GUMMOW J: Thank you, Madam. Will you tell your client that we will hear first what Mr Kennett says for the Minister and then after that we will invite your client to say anything he wants to say through you to us to supplement what he said in the written material. Yes, Mr Kennett.

MR KENNETT: Your Honours, this is a case where the Refugee Review Tribunal did not believe important elements of what the applicant claimed and found that he did not face a real chance of persecution in China. In the Federal Magistrates Court and then in the Federal Court allegations were framed in very broad terms that the Tribunal had been biased and had not considered the applicant’s claims properly.

So far as one can see from the reasons which are in the application book, the argument that was put forward by the applicant was in effect that the Tribunal did not believe him and should have believed him. That argument was unsuccessful. The only point where the documents filed in the courts below seem to achieve any degree of particularity was in alleging a failure to give the applicant an opportunity to respond to country information. That can be seen in the application before the Federal Magistrates Court at page 17 in the application book.

In the Federal Court there was, and in this Court there is, an allegation that the Tribunal failed to comply with section 424A of the Migration Act. That is still not given any particulars but could be seen to include that point that had been raised earlier about country information. There was also an issue raised by the learned federal magistrate as to whether section 424A might possibly apply to information that the Tribunal had relied on concerning the issue of a passport to the applicant in China in 2001 and whether that was a piece of information that needed to be canvassed with the applicant in writing under section 424A.

So to the extent that the case presents any real issues for determination, in my submission, they are issues that relate to that very particular statutory provision, one which does not have analogues elsewhere. They are also issues that the courts below have not had an opportunity to consider in the light of any detailed argument based on the facts of this case. There is, of course, a deal of case law on section 424A in the Federal Court and some in this Court, but the Court in this case would not have the benefit of any sustained consideration of the principles by courts below relative to the facts of this case. I would also submit that no substantial reason is apparent for doubting that the courts below have dealt with the issues in this case correctly.

There were two aspects of the case that might be seen to give rise to section 424A issues, and I propose to say a little about each of those. The first was the matter that was raised in the application about country information and the second is the matter that the learned federal magistrate raised about the fact that the applicant had been able to obtain a passport in China.

As to the first of those, the federal magistrate dealt with it at page 28 of the application book and in paragraph 27 his Honour dealt with it purely as a section 424A issue, without consideration of whether there were, in addition, any issues arising under the general law of principles of procedural fairness. The reason why his Honour took that approach is probably section 422B of the Act, which no doubt your Honours have seen before, but which is behind tab 6 in the bundle of materials.

If there were a general law procedural fairness aspect to this – in other words, if there were an argument that the Tribunal was not obliged, notwithstanding the limited terms of section 424A, to canvass material with an applicant, material which falls outside that section, the short answer to that point here would be that on the face of the material before the court the information was canvassed in the hearing. That can be seen from the Tribunal’s reasons at pages 7 and 8 of the application book. There is not here any proper basis to conclude, I would submit, that an adequate opportunity was not given to deal with that material according to general law principles if those principles have any remaining application.

His Honour, as I said, the federal magistrate, dealt with the matter as a section 424A point and relied on the exception in paragraph (3)(a) of that section. Section 424A is behind tab 7 in the bundle of materials. Paragraph (3)(a) refers to information which:

is not specifically about the applicant or another person and is just about a class of persons –

The Federal Court authority upon which his Honour relied takes the position that the words “and is just about” and the words which follow those words do not erect a separate criterion for exemption from section 424A but, rather, merely indicate the kind of specificity that is being required by the paragraph – in other words, it is a single criterion, not two criteria.

The point has not, so far as I am aware, been argued in this Court in an appeal. It has been argued in some unsuccessful special leave applications, but I do not seek to draw anything from those. Federal Magistrate Smith referred to NAMW, which is one of the leading Full Court cases on the subject, and the position taken in that case and taken by his Honour here is clearly correct, I would submit. If the words “just about a class of persons” involved a separate criterion then the courts in 424A matters would be drawn inevitably into fine-grained analysis of each piece of country information in a quest to determine what that information was about – whatever that inquiry might mean.

It would be necessary to make quite artificial distinctions between information that was just about a class of persons and information that was also in some sense about something else. Indeed, the exception that the paragraph attempts to confer would almost disappear because any information that is relied on by the Tribunal is ipso facto in some sense about the applicant’s case – whatever else it might be said to be about. So on the first of the potential 424A issues, in my submission, the position that was taken by the learned federal magistrate – and the issue does not seem to have been argued through and commented on in the Federal Court – is clearly correct, I would submit.

The other matter is the issue of a passport. Federal Magistrate Smith went to this at page 25 of the application book in paragraphs 17 and 18. His Honour had earlier in his reasons, at pages 21 to 22, paragraphs 8 and 9, and in particular paragraph 9, refrained from making any express finding as to the extent to which this point was canvassed in the Tribunal hearing. His conclusion, at paragraph 18, that he was not satisfied that the information was not also given by the applicant at the hearing and that therefore there was no breach of section 424A, is a conclusion which is clearly reliant on paragraph (3)(b) of the section and which is also clearly reliant on the onus of proof in relation to that paragraph lying on an applicant. That is assuming, as his Honour no doubt did, the correctness of the Federal Court’s decision in Al Shamry. The correctness of that decision was also assumed in this Court in SZBYR.

HEYDON J: It is not for federal magistrates merely to assume things. They have to take it as stating the law - - -

MR KENNETT: Yes, your Honour is right. What I mean to say is that his Honour has followed Al Shamry, which is now an integral part of the law on this section, without needing to refer specifically to it. That is how I should have put it. Justice Cowdroy in the Federal Court has not so clearly relied on the existence of an onus in this area. His Honour dealt with this matter at page 39 of the book in paragraphs 20 and 21. In paragraph 21, just below line 40, his Honour describes the conclusion of Federal Magistrate Smith as having been open to him, seemingly on the basis of an analysis of the summary of the hearing contained in the Tribunal’s decision.

His Honour has not, Justice Cowdroy this is - founded his decision, at least expressly on the view that there is no evidence either way that the applicant bears the onus. His Honour appears to have founded his conclusion on the evidence. It is a conclusion that I would submit his Honour was entitled to draw. Whether it is right or wrong would not seem to be a point appropriate for argument, but a point that this Court would need to go into in an appeal.

There might be, it could be said, an interesting issue as to where the onus of proof does lie under paragraph (3)(b), but to the extent that there is that issue, an appeal from Justice Cowdroy’s reasoning, at paragraph 21, would not be a suitable vehicle to test it because his Honour has not, at least on the face of it, relied on any particular view as to the existence of the onus.

In the Federal Court and in the Federal Magistrates Court the view does seem to be taken that the onus of proof lies on an applicant to show that material does not come within paragraph (3)(b). I am not aware of a case where it has been argued in this Court, and nor am I aware of a case where there has been sustained analysis of the point. If it did need to be argued we would go back to the classic statement in Vines v Djordjevitch, which I have included behind tab 5 of the bundle of materials.

The Minister would argue that section 424A applies to a class of information and what each of the paragraphs in subsection (3) does is help to define what that class of information is. An applicant needs to show that there is information that comes within the section and thus part of the applicant’s task, evidentiary task, is to negative those three paragraphs. The onus does not lie on the Minister to show that the information does come within them. So the federal magistrate, to the extent that he relied on an onus of proof, on the existence of an onus, was entitled to do so, I would submit. So there is no substantial reason to doubt the correctness of
his Honour’s decision or, for that matter, Justice Cowdroy’s decision on that point. Your Honour, those are the matters that I wanted to raise, if the Court pleases.

GUMMOW J: Madam Translator, would you tell your client that we have read his written material in the application book and does he wish to now say anything orally through you in addition to what is said in writing?

SZFMB (through interpreter): You have all my written submissions, your Honour. I do not have any further oral submissions to make, your Honour.

GUMMOW J: We have considered the written and the oral submissions in this matter. We are not persuaded that there are sufficient prospects of success on an appeal for there to be a grant of special leave to appeal and special leave is refused with costs.

The Court will now adjourn to 10.15 am on Tuesday, 22 April 2008 at Canberra.

AT 2.54 PM THE MATTER WAS CONCLUDED