SZBYB v MIAC & Anor [2008] HCATrans 306 (26 August 2008)

Last Updated: 1 September 2008

[2008] HCATrans 306

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S50 of 2008

B e t w e e n -

SZBYB

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 AUGUST 2008, AT 10.52 AM

Copyright in the High Court of Australia

MR L.J. KARP: If the Court pleases , I appear for the applicant. (instructed by the applicant)

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

HAYNE J: There is a submitting appearance for the second respondent I believe. Yes, Mr Karp.

MR KARP: Your Honour, the special leave questions advanced in this case raise issues about the content of the Refugee Review Tribunal’s and also the Migration Review Tribunal’s duty to observe procedural fairness under both statute and common law. As such, they and particularly the grounds that raise section 424A go to the protection available to applicants who appear before specialist migration tribunals.

The applicant’s case relating to section 424A(1) may be summarised as follows. Firstly, the requirement to disclose particulars of information which is the reason or part of the reason for affirming the decision under review in section 424A(1)(a) mandates disclosure of more than simply the conclusions which may be drawn from or stated by the relevant information. Second, the word “particulars” in 424A specifies what has to be provided or disclosed. In context, it refers to details which go to support the conclusions which are stated in or may be drawn from the information. Third, the measure of sufficiency of particulars is whether the applicant is given a meaningful opportunity to investigate the information and take steps if possible to meet it. In that respect, your Honours, I submit that Justice Allsop in the case of Paul v Minister for Immigration, the relevant paragraph can be seen at page 41 of the application book, is correct. His Honour there said at about line 15:

The evident purpose of s 424A is to play its part in the provision of a procedural analogue to the common law of procedural fairness. I think s 424A should be looked at with a purpose in mind of ensuring that the claimant is fairly informed of information adverse to his or her case . . . so that –

and I emphasise this –

investigation may be made, and steps may be taken, somehow, if possible, to meet it. The extent of particulars of any information should be looked at in a common sense way in the context of the matter in hand and with fairness to the applicant in mind.

I would submit, your Honours, that that is a correct statement of the law. I would also submit that if that which is available to the Tribunal at any particular time is not sufficient to allow such investigation, then the Tribunal is obliged to seek more information. That is pursuant to the absolute requirement of providing particulars of information. Your Honours, in the current case what was provided was as Justice Emmett said at page 70 of the application book in paragraph 15 in the nature of a conclusion. It provided no detail of how the alleged fact of fabrication of the letter said to be from Sheik Hasina was confirmed, why it was that the signature was said not to be of her or where, in fact, the information came from apart from the Department of Foreign Affairs.

My submission, your Honours, is that the information disclosed by the Tribunal did not give the applicant a meaningful opportunity to respond to the information presented to him. Specifically, it was not stated who the Foreign Affairs spoke to or wrote to, what were the terms of the inquiry or what was the response. In the face of the conclusion which the Tribunal was apparently prepared to accept at face value, all the applicant could do was deny the accuracy of the information.

In my submission, this case squarely raises the issues of the content of the duty to provide particulars pursuant to section 424A. That is an issue pertinent, I would say, to a continuing stream of applicants in both migration tribunals; the Migration Review Tribunal and the Refugee Review Tribunal. It thus raises questions of general importance and the requirements of justice.

HAYNE J: If one took the facts of this case outside the migration context and put them into a litigious context, would a defendant who was alleging that a document critical to the plaintiff’s case was forged have to give particulars greater than the document is forged? In particular, would the defendant have to go on to give particulars and, what is more, the evidence we are going to adduce to establish that fact consists of evidence from handwriting expert J Smith whose report is as follows?

MR KARP: Well, it depends on the nature of the situation, your Honour, but I would submit that more would have to be provided than a bland statement that the document was forged.

HAYNE J: Not too bland, I do not think, Mr Karp. That is a good mouth filling allegation.

MR KARP: It is certainly an allegation, but some reason as to why the document was said to be forged, but this is a different situation. It is in more conventional civil litigation. The parties have resort to more material and presumably more evidence than an applicant of refugee status who has to get their material from somewhere in a foreign country. In addition, civil litigation issues are joined by the parties. Here it is the Tribunal which states the issue, gathers the evidence and presents it and is also, quite apart from the gathering of evidence, effectively the judge in the proceedings.

It is a matter of fairness, your Honours, in my submission, that the Tribunal gives sufficient detail of the background to the allegation for the applicant to be able to respond. If that is not done, then, in my submission, 424A simply becomes a matter of form rather than substance and defeats the purpose of the section.

Unless I can assist your Honours in another way, I might move on to the common law natural justice ground and that is based on what I say is an inconsistency between prior cases, that is, Somaghi v Minister for Immigration, particularly at pages 108 and 109. That is in my bundle. At about point 8 on the page, your Honours, his Honour Justice Jenkinson said that there were:

observations, which may be thought to constitute a gloss on the general rule –

that the applicant does not have to be given a running commentary of the Tribunal’s or the decision-maker’s thoughts. They are:

that an unfavourable animadversion, by the decision-maker or expressed by a departmental officer to the decision-maker, upon the conduct of an applicant, or even of another person whose interest in a decision favourable to the applicant is to be weighed by the decision-maker, should be disclosed to the applicant so that he may respond, if the animadversion is not an obviously natural response to the circumstances which have evoked it –

That, your Honours, in my submission, was adopted by the Full Court of the Federal Court in Alphaone, which is the second case in my bundle, at the top of page 592 to the effect that the entitlement of natural justice:

extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications –

the decision-maker does not have to give a running commentary. Your Honours, in my submission, that is the more recent Full Federal Court case of Puafisi. Pages 5 and 6 of the print at paragraphs 20 and 21 significantly narrows the meaning and the content of their Honours’
comments in Somaghi and the Full Court in Alphaone. Their Honours say in paragraph 21:

the second sentence of the passage –

that is, the sentence which refers to a decision-maker having to give or disclose conclusions which may not be obvious on the evidence –

should not to be read in isolation. In particular, it should not be read as requiring disclosure of a view based on known materials and in relation to a known issue, as in the present case.

That, in my submission, is the difference of judicial opinion upon which I base my submission. In the present case, what was the evidence before the Tribunal is extracted by the learned federal magistrate at pages 48 to 50 of the application book. If I could take your Honours to page 49, the Tribunal member asks the applicant essentially, what are the policies of his party, the Awami League? Initially this answer was mistranslated and the answer to 167 is the policies relate to “agriculture, education and industry”. At 169 he was asked to tell the Tribunal “about the industry policy in detail”. Over the next few questions, pages 49 to 50, he gives a commentary and a short analysis of the Awami League’s industry policy, answers questions about it, but the Tribunal’s conclusion, which is at page 20 of the application book starting at about line 14:

Indeed, when asked about the Awami League political platform, the Applicant had [presumably no] not understanding of it and the party’s detailed goals and simply claimed that it had 3 main areas: agriculture, education and industry. When the Tribunal tried to explore some of these in more detail, the Applicant was unable to articulate or even outline any coherent policies or even show he had any political knowledge (let alone understanding) of the issues involved.

Now, your Honours, there was apparently no information in the appeal book in the court below or, indeed, before the federal magistrate which went to the Awami League’s policies. In the absence of that and in the presence of the applicant’s answers to the Tribunal’s questions, in my submission, the Tribunal’s conclusion was at the very least not obvious on the known evidence. In other words, it raises squarely the issue of the content and the application of the statement of the High Court in Alphaone at 592. Your Honours, unless I can further assist, those are my submissions.

HAYNE J: Thank you very much, Mr Karp. We will not call on you, Mr Potts.

We need not consider whether, as the applicant submitted, it is possible to discern some difference between statements of relevant principle made by the Full Court of the Federal Court of Australia in Somaghi v Minister for Immigration [1991] FCA 389; (1991) 31 FCR 100; Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 and Puafisi v Minister for Immigration and Citizenship [2008] FCAFC 39.

In our opinion, an appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave to appeal. Special leave is accordingly refused. It must be refused with costs.

AT 11.08 AM THE MATTER WAS CONCLUDED