SZIGH v Minister for Immigration & Citizenship & Anor [2009] HCATrans 142 (19 June 2009)

Last Updated: 24 June 2009

[2009] HCATrans 142

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S10 of 2009

B e t w e e n -

SZIGH

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 JUNE 2009, AT 11.39 AM

Copyright in the High Court of Australia

MR P.W. TAYLOR, SC: May it please the Court, I appear with my learned friend, MR R.W. KILLALEA, for the applicant. (instructed by Eddy Neumann Lawyers)

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

GUMMOW J: There is a submitting appearance from the Refugee Review Tribunal, which is the second respondent. Yes, Mr Taylor.

MR TAYLOR: Your Honours, this application raises the question of whether a jurisdictional error has occurred when a tribunal has made an error of law which may have affected the exercise of power. It also concerns the administration of justice in the particular case. Your Honours, the decision of his Honour Justice Buchanan exercising the appellate jurisdiction of the Federal Court on appeal from the Federal Magistrates Court found that the Tribunal had made an error of law but that the error had no bearing on the Tribunal’s decision because the applicant’s factual claims had been rejected. That was the error of the court, because the applicant’s factual claim of westernisation had not relevantly been rejected.

The Tribunal dealt with the applicant’s claim of westernisation at page 19 of the application book. In the second bullet point on that page, the Tribunal did not reject that the applicant had become westernised, but rather found that westernisation would not cause problems amounting to persecution in Algeria. Your Honour sees that at the bottom of the second bullet point.

GUMMOW J: What page are we at?

MR TAYLOR: Page 19, the second bullet point. Your Honours will see in the second half of that bullet point:

As to his becoming westernised, since Algeria was within living memory a French territory, there are many people in Algeria whose life-style one could call “westernised”. That alone would not cause problems amounting to persecution.

The Tribunal relied upon Algeria being a French territory within living memory and also, if your Honours go to paragraph 50 on that page, the Tribunal preferred to rely on the two reports of the United States State Department that were quoted – they are quoted earlier in the report – rather than the country information submitted by the applicant. This is at paragraph 50. That preference for the earlier reports of the United States State Department rather than the 2007 report, which was amongst the country information submitted by the applicant - - -

GUMMOW J: All this leads up to paragraph 51, does it not, on page 20? That is the conclusion.

MR TAYLOR: Yes, your Honour, but the - - -

GUMMOW J:

I am not satisfied that he or his family are Christian. I do not accept that they have been or that there is a real chance that they will be persecuted for reason of their religion or their Berber ethnicity.

MR TAYLOR: Yes, but there was no finding that the applicant was not westernised and the reason why westernisation did not cause problems amounting to persecution was in reliance, as indicated at paragraph 50, on the two reports rather than the country information submitted by the applicant. The Federal Court found that that was an error by the Tribunal. If your Honours go to the judgment at pages 69 through 72, his Honour Justice Buchanan refers to the material supplied by the applicant and quotes, in paragraph 27 on page 72 of the appeal book, a portion of the 2007 report which was a later version of the two reports relied upon by the Tribunal. Your Honour will see that his Honour emphasised the existence in the report of the statement:

terrorist violence based on religious extremism increased after the GSPC was recognized by al-Qa’ida in September 2006 and changed its name in February 2007 to al-Qa’ida in the Islamic Maghreb –

His Honour then, at pages 73 and 74, refers to two decisions of this Court, emphasing the need to rely upon the most recent and accurate information, and concludes - - -

HEYDON J: You must question the relevance of what Justice Mason said in Peko-Wallsend to the circumstances. He was talking about how ministers decide things in the light of considerations they are obliged to take into account. Mr Wyndham was a finder of fact. He was not a minister deciding things in the light of weighted considerations. Was he not entitled to choose which of the country information he preferred to choose?

MR TAYLOR: In certain circumstances you would, your Honour, but where in this case there was a 2005 report, a later version in 2006 and then again a later version in 2007, Justice Buchanan took the view that it was an error to not prefer the 2007 report as the most current version. He deals with that at paragraphs 39 and 40 on page 75 of the appeal book. In summary, at the bottom of page 75, the last four lines of paragraph 40, he concludes:

My present concern is to decide first whether the information to which regard was not paid, for whatever reason, was relevant. As earlier indicated I am satisfied that it was. It should have been taken into account. In particular the 2007 Religious Freedom Report should have been preferred as more up to date than the 2006 Religious Freedom Report.

Over the page his Honour goes on to conclude or consider whether that error amounted to a jurisdictional error, which was something that the applicant needed to establish. Your Honours will see that his Honour referred again to the decisions of Craig and Yusuf of this Court and determined, at the middle of paragraph 44, that the error of the Tribunal was not “jurisdictional error unless it affected the exercise of power”, rather than merely possibly affecting the exercise of power in the middle of that paragraph:

Here the error I have identified does not represent jurisdictional error unless it affected the exercise of power. That element is not supplied by assumption or the identification of mere possibilities.

We submit, your Honour, that if the distinction that was intended by his Honour was to exclude those cases where, although the excluded material is relevant, the court could not determine whether it necessarily would have impacted on the result, then we respectfully submit that is an error. The concern of this Court that the - - -

GUMMOW J: What do you say about the Minister’s submission at page 236, paragraph 16 which says if there are infelicities in Justice Buchanan’s decision in the end, the result is to be supported. Therefore, it is not a good case for special leave?

MR TAYLOR: Your Honour, in our submission, the reasoning in paragraph 16 of the respondent’s submissions is to the effect, certainly in the bullet point on page 237, that a relevant consideration which has not been taken into account because of oversight is somehow to be not considered an error of law for the purpose of determining a review of that decision. We say that the question of the reason why the relevant consideration was not taken into account is not generally a relevant factor in determining whether there has been an error or not.

The reason why the matter needs to go back to the Tribunal, in our submission, is that there has been no decision by the Tribunal considering the impact of the 2007 report on the finding on page 19, which I took

your Honours to, of westernisation. If the 2007 report had been considered, as we would submit, it is relevant to the question of whether westernisation could amount to problems causing persecution. His Honour, although he found that the report was relevant and should have been considered, ultimately concluded at the bottom of page 76 and on to page 77:

the al-Qa’ida connection material in the 2007 Religious Freedom Report), had no bearing on the basis upon which the RRT rejected the appellant’s claims and could have made no difference to its decision, having regard to the whole of the reasons it gave.

The reason why his Honour reached that view is because, as indicated in paragraphs 45 and 46, the appellant’s factual claims had largely been rejected, but the claim of westernisation had not been rejected. It had not been rejected that the appellant had developed western outlooks, mores, attitudes. The question was whether, being a westernised Algerian, gave rise to a genuine fear of persecution, and that was a matter which the 2007 report was relevant to. It stood independent, in our submission, of whether the other matters raised by the appellant were not found to be creditworthy, your Honours.

We submit that his Honour did not consider the impact of the 2007 report on the position of westernised persons in Algeria, which was necessary to do if he were to conclude that the rejection of the later report made no difference to the applicant’s claim based on westernisation. We say that was the error that warranted special leave. The reasons that his Honour gives at 45 and 46 do not go to the question of why the report would not impact on a decision about westernisation. They go to why the report is not relevant to other claims made by the applicant and not to one in contest before him and before the Federal Magistrates Court and the substance of the application in this Court. If your Honour pleases.

GUMMOW J: Thank you, Mr Taylor. We do not need to call on you, Mr Kennett.

There are insufficient prospects of success in demonstrating jurisdictional error by the Refugee Review Tribunal, and thus in displacing the outcome in the Federal Court, to warrant a grant of special leave. Special leave is refused with costs.

We will adjourn to reconstitute.

AT 11.52 AM THE MATTER WAS CONCLUDED