SZIBW & Anor v Minister for Immigration and Citizenship & Anor [2009] HCATrans 30 (13 February 2009)

Last Updated: 16 February 2009

[2009] HCATrans 030

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S58 of 2008

B e t w e e n -

SZIBW

First Applicant

SZIBX

Second Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2009, AT 1.59 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 G.R. KENNETT: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)

HEYDON J: Mr Kennett, why should special leave not be granted to resolve this difference.....applicant.....before the Federal Magistrates Court?

MR KENNETT: Your Honour, in short, because this case would not do it, in my submission. Because of the basis on which it was disposed of in the Federal Court, before one gets to the substantiative - - -

HEYDON J: ..... relevant in exercising the discretion under the relevant provision to take into account the prospects of success?

MR KENNETT: It is; it was. Perhaps it was done inferentially in a way because his Honour certainly had an eye to the merits of the application as they appeared from the case law then extant and discussed the grounds, albeit after having expressed his conclusion, that the matter should be dismissed for want of appearance.

HEYDON J: Can I just get one thing straight. The decision in SZHKA of Justices Gyles and Gray was handed down after.....

MR KENNETT: Yes, that is right, your Honour.

HEYDON J: Where exactly did Justice McKerracher.....the merits.....?

MR KENNETT: On page 73 of the appeal book at paragraph 23 his Honour says that he has considered the motion for dismissal and the merits and expresses his view that there should be dismissal on the basis of non-appearance and then says, “However I also propose to consider the merits of the appeal” and goes on over the next couple of pages to do that.

HEYDON J: If you are wrong about that.....is not the discretion to dismiss.....

MR KENNETT: If I was wrong about?

HEYDON J: There are two possible difficulties for a judge who dismisses.....no consideration is given to the merits, then a relevant factor has not been taken into account. If, on the other hand, it is taken into account, a question or a conclusion is arrived at, namely, that if the refugee claimant does not have any right of hearing before the Refugee Review Tribunal the second time around, as it were, he has the discretion.....

MR KENNETT: On the basis that there has been an error of principle in – well, I would submit not, your Honour, because if that were so, then discretionary refusals or discretionary dismissals would be open to appeal in the same way as any other decision. One could go over what the primary judge had said about the merits, which might be quite brief and expressed in an interlocutory sense, but one could go over that with a fine-tooth comb and say his Honour failed to apply case X and therefore erred in principle. That would be inconsistent, in my submission, with the nature of the exercise that is being undertaken under the provision that his Honour was using.

KIEFEL J: You say it was sufficient for his Honour to apply the non-appearance rule and that there was nothing more needed to be undertaken in relation to that, that you would separate the merits completely from - - -

MR KENNETT: I would not separate them completely, your Honour. I would accept what Justice Heydon puts to me, that there ought to be, perhaps depending on the circumstances of the case, but there ought usually to be some thought given to whether it is a strong appeal or not. I submit that his Honour did that and the court on appeal from the exercise of discretion would not scrutinise his Honour’s exposition of the case law with the same intensity as one would on an appeal from a substantive decision. I think that is the best way I can put it.

If this difficulty is overcome and if the issue which my friend seeks to agitate is reached, then I have to concede it is a real issue he has prospects of success. It is an issue confined to the Migration Act but of potential relevance to some number of people making applications under that Act. So it really is the threshold point that I submit is the reason why leave should be refused. I think I have said about all I can about it.

HEYDON J: We need not trouble you, Mr Jackson. We are of the opinion that special leave to appeal ought to be granted. How long do you think it will take, do you know?

MR JACKSON: Yes, I think half a day, your Honours.

HEYDON J: Yes. Thank you for your assistance. The Court stands adjourned until 10.15 am on Tuesday, 3 March 2009.

AT 2.05 PM THE MATTER WAS CONCLUDED