SZICV v MIAC & Anor [2008] HCATrans 238 (13 June 2008)

Last Updated: 23 June 2008

Replacement Transcript

[2008] HCATrans 238

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S192 of 2007

B e t w e e n -

SZICV

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

KIRBY J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 JUNE 2008, AT 10.31 AM

Copyright in the High Court of Australia

MR J.A.C. POTTS: May it please the Court, I appear for the first respondent. (instructed by Clayton Utz)

KIRBY J: Yes.

MR POTTS: This matter has been settled. Mr Zipser, who is not yet here, I have spoken to this morning. I understand there is a form of order agreed but he has not yet signed it, your Honours, so I am in your Honours’ hands. There is a form which is agreed.

KIRBY J: Yes, well when you are ready – you either have it signed or if Mr Zipser is here, or even better, if Mr G.O’L. Reynolds is here, then it can be handed up.

MR POTTS: May it please, your Honours.

KIRBY J: But we would prefer to wait and see the document signed or have your assurance that the matter is disposed of.

MR POTTS: If the Court pleases.

AT 10.32 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.00 AM:

KIRBY J: Mr Zipser, you are here to hand up the consent orders in the matter. Is that correct?

MR ZIPSER: That is correct.

MR B.M. ZIPSER If the Court pleases, I appear for the applicant. (instructed by Abrahams & Associates)

KIRBY J: Earlier Mr Potts announced his appearance for the first respondent. The Registrar has informed the Court that the second respondent submits to any orders of the Court save as to costs. Do you ask the Court to make the orders in accordance with the consent order?

MR ZIPSER: I do, your Honour.

KIRBY J: There is no objection to that?

MR POTTS: No. I consent to those orders, your Honour.

KIRBY J: A question arises, given that this is a public law remedy, as to whether it is necessary for the parties to notify the Federal Magistrates Court of the basis upon which the relief is being granted so that the same errors will not be committed again in the future.

MR POTTS: I do not wish to trespass on my friend’s prerogative to go first, but perhaps if I can expose that with his consent, very briefly, your Honours. Your Honours will have seen this was a case dealing with the competency of my friend’s client’s application. The objection was the time limitation.

KIRBY J: Yes. I know the case well.

MR POTTS: I am sorry, your Honour.

KIRBY J: Justice Moore dissented and the matter was sharpened by that dissent.

MR POTTS: The present willingness to concede is based upon the Full Federal Court’s decision in the Minister v SZKKC [2007] FCAFC 105; (2007) 159 FCR 565. I can hand your Honours copies if your Honours wish to have it. That was a decision of the Full Federal Court made after the decision in this case. It focused upon the meaning of the word “actual” as opposed to “deemed notification” in section 477. The effect of that decision is to effectively mean that those words require personal service of the decision record on the applicant by the Tribunal before time begins to run.

The Minister sought special leave and was granted special leave on 8 February this year in SZKKC. That appeal was due to be heard on 19 May this year but on 15 May the Minister discontinued that appeal. So the Minister has now effectively accepted the correctness of SZKKC. Applying that meaning to the words in section 477, there was an admission by the applicant in this case that he had received, it would seem, by post a copy of the decision but had not, within the meaning of the section as now understood in light of the Full Court’s pronouncement, been actually served with it until probably 10 January 2006. He commenced on 13 January 2006 which meant, on the application of the section as now understood, he was within time and did not need an extension.

That is the basis on which the Minister now concedes the matter, acting as he properly should as a model litigant and consistently with having accepted the law as in SZKKC. I can expose that factually to your Honours with reference to the material, but that is the basis of the concession. That is the basis on which we ask your Honours to declare the application was competent and to send it back for redetermination.

KIRBY J: Yes. Are you content with that exposition of the basis, Mr Zipser?

MR ZIPSER: I am, your Honour.

KIRBY J: Very well. The Court thanks you for explaining that, Mr Potts, and thanks both parties for their assistance in the matter. The issue raised by Justice Moore’s dissenting opinion will remain outstanding for some case where the facts tender it. That will have to be decided, perhaps, at that time.

The Court makes the orders in accordance with the consent order which has been handed to the Court signed by counsel for the applicant and the solicitor for the respondent, which document I initial.

AT 11.04 AM THE MATTER WAS CONCLUDED