SZNKX v Minister for Immigration and Citizenship & Anor; SZNKW v Minister for Immigration and Citizenship & Anor [2010] HCATrans 335 (10 December 2010)

Last Updated: 14 December 2010

[2010] HCATrans 335

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S2 of 2010

B e t w e e n -

SZNKX

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Office of the Registry
Sydney No S32 of 2010

B e t w e e n -

SZNKW

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Applications for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 2010, AT 10.35 AM

Copyright in the High Court of Australia

__________________

MR S.E.J. PRINCE: May it please the Court, I appear for the applicants in both matters. (instructed by the applicants)

MR G.T. JOHNSON, SC: May it please your Honour, I appear for the first respondent in both matters. (instructed by Sparke Helmore)

GUMMOW J: Yes, thank you Mr Johnson. There is a submitting appearance by the Tribunal for the second respondent. Yes, Mr Prince.

MR PRINCE: Thank you, your Honours. Your Honours, the parties seem to be, from the outline of submissions, really at cross purposes. The applicant does not claim that the single line in the dob-in letter identifying the case file number is in and of itself and extracted out of its context information. The claim is that the letter itself is information. Once the letter itself is accepted as being information, as it was below, then that opens up the other parts of section 424A of the Migration Act, namely, whether clear particulars were given of the letter.

The question of whether clear particulars have been provided must be read in that statutory context which is designed to accord procedural fairness and to enable the applicant to deal with and respond to the allegations or the matters which the Tribunal will likely use that information for. In the present case, the Tribunal did not provide a copy of the letter to the applicants and I understand what my friends say about VEAL, although I must say I do not accept that VEAL creates a rule of law that documents are never needed to be provided to applicants but rather, the court there was concerned with the content of procedural fairness in those particular circumstances where a person writing in had asked to not have his identity revealed and there was a policy reason for the Executive not being obliged to disclose the letter which would have disclosed the identity.

GUMMOW J: Just explain to me how section 424AA would, as it were, leave a breach of section 424A.

MR PRINCE: It is almost like a defence, your Honour. It works by reason of section 424A(2A) which says if you would otherwise be obliged under section 424A to provide information to an applicant you can take an alternative path so long as you satisfy the requirements of section 424AA. Section 424AA in itself is not an obligation. It is really a method by which the Tribunal could avoid the primary obligation in section 424A which is to provide material in writing. So there is not doubt here that there was not compliance with section 424A. The only issue is whether the Tribunal’s actions in describing the letter to the applicant in the way that it did brings it within section 424AA and so enlivens 424A(2A) so as to excuse compliance with that that section.

GUMMOW J: I think we will be assisted to hear at this stage from Mr Johnson.

MR PRINCE: Yes, your Honours.

MR JOHNSON: Your Honours, the provisions of section 424A of the Act are concerned with information. The obligation upon the Tribunal is to give the applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision. So that is the first point, your Honours. There is a distinction between, on the one hand, an obligation to provide a copy of the document, which is not what the section says, and the obligation to provide particulars of information which the Tribunal considers would be part of the decision, which is.

Now, in this case we do not get to the question of whether 424AA might save the situation because the obligation in section 424A(1) simply did not arise as the applicant contends. If there was no obligation under section 424A(1) to provide the letter, then we do not need to consider whether any other section operated to excuse the Tribunal for not having done so. In this particular case - - -

HAYNE J: Does that argument treat the relevant information as that which appears in the body of the letter shorn of the other matters which appear in the document as, for example, its address, the manner of its address and the other details?

MR JOHNSON: Yes.

HAYNE J: Why is that so? The reason, or part of the reason, for affirming the decision would be, would it not, that the Department has a letter. The letter says X. The letter is right when it says X. Would you accept that?

MR JOHNSON: Yes, I accept that, your Honour.

HAYNE J: The last one, the letter is right when it says X, is something which the decision-maker might form a view about having regard to the way in which the document appears, but, more importantly, the claimant might wish to dispute having regard to the whole of what appears on the paper.

MR JOHNSON: With respect to the assessment that the other information or particulars of information are correct, that assessment of correctness per se is not information as the meaning of that word was ruled upon in SZBYR. Your Honours will remember that in SZBYR – I provided I think a copy to your Honours yesterday. It is in a folder that your Honours have. I hope your Honours’ folders are tabbed the same as mine. It should be tab 5.

HAYNE J: Tab 5.

MR JOHNSON: If I could just take your Honours to [2007] HCA 26; 235 ALR 609. If I could just take your Honours to page 615. In paragraph [15] the plurality found that:

Section 424A does not require notice to be given of every matter the tribunal might think relevant to the decision under review. Rather, the tribunal’s obligation is limited to the written provision of “particulars of any information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.

Then in paragraph [17] there is some discussion of what that requirement involves. There is mention of the words “would be” in that formulation and if your Honours get to about six lines from the bottom of the page, the judgment explains:

Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations –

in effect, did not form part of what had to be disclosed under the provision. Over the page in paragraph [18] the Court refers with approval to what was said in a Full Federal Court judgment of VAF about the word “information”, namely, that it:

. . . does not encompass the tribunal’s subjective appraisals, thought processes or determinations . . . nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc . . .

The remainder of the paragraph makes clear, in other words, that the word “information” is related to things beyond mere doubts, inconsistencies et cetera.

GUMMOW J: What was the actual dispute in SZBYR?

MR JOHNSON: It was basically about whether or not certain inconsistencies observed by the Tribunal were information. My point, your Honours, if I can try to reduce it to dot points - - -

GUMMOW J: It is against that background, I think, your opponent says he is mystified as to the bricks you try and make out of that judgment.

MR JOHNSON: Well, firstly, with respect to Justice Hayne’s question before about that part of the Tribunal’s reasons which, in effect, found the letter was correct, or accepted the letter, that is an evaluation. That is not information within the sense of section 424A. To determine what is information within the context or within the meaning of section 424A, one has to ask whether or not it would be part of the reason for the Tribunal’s decision.

If I could just take your Honours briefly to the other recent judgment of the Court on 424A which is referred to in that folder. It is SZLFX which is under tab 6. In SZLFX there was some discussion of the earlier case, SZBYR, including the requirement that the information be a rejection, denial or undermining of the claims. Then in paragraph 24 on page 514 of the report the Court observed:

As a Full Court of the Federal Court of Australia (Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration and Citizenship, s 424A depends on the RRT’S “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had “considered” or had any opinion about the file note.

Then there is reference to a judgment of Justice Heerey and in the next paragraph, in paragraph 26, if I could just skip to about seven lines from the bottom, the Court found:

The only inference available was that the RRT did not consider the second sentence of the file note to be the reason or part of the reason for affirming the decision. In these circumstances the first respondent cannot sustain the submission that the attitude of the RRT as evidenced in its reasons showed that the RRT regarded the second sentence of the file note as materially adverse to him.

So what is happening here is that the Court is looking at the particular parts of the document and asking whether those parts were matters which would be part of the reason for affirming the decision and the Court is being guided by what the Tribunal says to be its reason in making that judgment. The Minister’s answer to the present application ultimately boils down to this proposition, that when one goes to the Tribunal’s decision, the particular aspects of the letter which the Tribunal did consider to be part of the reasons for the decision were, in fact, put to the applicant during the hearing. In that sense, 424AA was met and there was no 424A obligation. That is the only way in which section 424AA is relevant to the present application.

If I could just take your Honours briefly to the Tribunal decisions just to make that point and then subject to anything that your Honours might say, I will sit down. Firstly, if your Honours goes to the application book in SZNKW, the Tribunal decision starts on page 2 of the book and we find the way that the Tribunal ultimately used the letter in paragraph 89 of the Tribunal’s decision on page 21 of the book. I will read that aloud, if I may. The Tribunal says:

As I explained to the applicant in the course of the hearing before me, I would not ordinarily place much weight on a message from an anonymous informant but I consider it significant that the person who sent this anonymous fax message was clearly close enough to the applicant to know his passport number and the nature of the claims he had made in support of his application for a protection visa. Accordingly I give what is said in the message some weight along with the other evidence before me which, for the reasons given above, leads me to find that the applicant is not telling the truth and that he not homosexual as he claims.

Those indicators that the Tribunal focused upon from the letter there and, indeed, all of the other indicators of the letter that the Tribunal noted earlier in paragraph 86 of its reasons at the foot of page 20 – which I will just give your Honours an opportunity to glance at – namely, that the letter identified:

the applicant by name, date of birth and passport number. The message stated that his claim that he was gay was ‘totally bogus’, that his claim that he had not been to his village since 2000 was totally false and that he had in fact spent most of his time in the village. The message said that the applicant had a close relationship with his parents, that his parents had blessed him before he had left for Australia and that he even had a girlfriend.

All of those matters were put to the applicant at the hearing. There was no transcript in the evidence below but there is an account by the Tribunal of what happened at the hearing. If your Honours go to paragraph 63 on page 15, the Tribunal there says:

I put to the applicant that on 18 December 2008 an anonymous informant in Bangladesh had faxed a message to the Department identifying him by name, date of birth and passport number, and stating that his claim that he was gay was “totally bogus”. I put to the applicant that the message referred to his claim that he had not been to his village since 2000 - - -

GUMMOW J: What is the foundation for the statement in paragraph 86 on page 20, “an anonymous informant in Bangladesh faxed”?

MR JOHNSON: I am sorry, your Honour, the basis for the statement that?

GUMMOW J: Yes, “an anonymous informant in Bangladesh faxed a message”. Paragraph 86.

MR JOHNSON: Yes. It is not clear from the material in the book, your Honour, and it is not clear to me at all, frankly, why the Tribunal said “a person in Bangladesh”, unless, and this is quite - - -

GUMMOW J: Knowing of the file number.

MR JOHNSON: Well, unless the Tribunal was mindful of the rather broken English in part of the document, although that would not say from which country it was posted. It would only say something about the person’s use of English.

GUMMOW J: Does the fax itself have an indication of place of source?

MR JOHNSON: No, it appears not to have, your Honour.

HAYNE J: Even if it had a fax header, would that take you - - -

MR JOHNSON: As far as can be ascertained from the material that I have available to me, your Honour, we have not been able to find anything which explains that particular finding. The dob-in letter itself is in Tab 1 of the folder and that does have some English language imprecision within it. I will not read it aloud, but it does read as though the person is aware of happenings in the village, so perhaps the Tribunal drew the inference on that basis. But, in short answer to your Honour Justice Gummow, I cannot point your Honour to any specific evidence that it came from Bangladesh.

The point, your Honour, to which those visits to the Tribunal’s reasons is directed is that to the extent that there were aspects of the letter that the Tribunal did rely upon in its reasons, to the extent that there were aspects of the letter that would be part of the Tribunal’s reasons for decision, those matters were put to the applicant, as evidenced by the last passage to which I took your Honours, and so in relation to those matters, there was compliance with section 424AA as found by the judge below. That is in the case of SZNKX. The same Tribunal member decided both cases.

GUMMOW J: They then went in different directions in the Federal Court.

MR JOHNSON: Yes. Different judges in the Federal Court. Yes, that is right. Justice Kenny decided SZNKW and Justice Lander decided SZNKX. I will take your Honours to the corresponding paragraphs of the Tribunal decision in this case, but they read quite the same way as the other ones. I will just show your Honours where they are.

HAYNE J: Can I just anticipate a moment, do the two applications stand or fall together or are you saying they do not?

MR JOHNSON: No, they stand or fall together.

HAYNE J: Yes.

MR JOHNSON: If I take your Honours to page 21 of the book in SZNKW, your Honours will find in paragraphs 86 and 89 the use which is made of the letter and those correspond with the two paragraphs that I took your Honours to before. So your Honours will see that in 89 the Tribunal is again putting emphasis upon the fact that the person who sent the message was close enough to know his passport number and the nature of the claims that he had made. Accordingly, it was going to give the letter more weight than it would ordinarily give an anonymous letter. At paragraph 86 it refers to the same features of the letter that were referred to in the corresponding paragraph of the other one, and the spot where the Tribunal puts all of this applicant is back on page 15 of the book in paragraph 63, which again is quite materially the same as the corresponding paragraph in the other decision.

So it comes down to the proposition that to the extent that the letter contained information that was caught by section 424A, the Tribunal did give particulars of that information to the applicant at the hearing complying with section 424AA and, therefore, there was no residual obligation under section 424A to be fulfilled. So we say, your Honours, that the application should be dismissed because it does not have sufficient prospect of success. Thank you, your Honours.

GUMMOW J: Mr Prince, what do you say about the Minister’s reliance on SZLFX in [2009] HCA 31; 238 CLR 507?

MR PRINCE: It does not assist the Minister because it is a different issue. As I said, we are talking passed each other in a sense that the Minister is focusing on the question of information rather than the question of particulars of the information. Could I answer that, your Honours, by reference to the application books. In SZNKX your Honours will find at page 35 of that book, paragraph 20 – this is the decision of the federal magistrate at first instance – about halfway down the paragraph, his Honour says:

However, there is no doubt, and it is accepted by the Minister, that the “dob-in letter” is a piece of information which would attract the requirements for s 424A unless the Tribunal had given the applicant the benefit of s 424AA.

Then likewise in SZNKW in the decision of the federal magistrate at first instance. In that case at page 44 of the application book, paragraph 52, the learned federal magistrate said, and it does not seem to have even been contested, that:

Plainly, what was contained in the anonymous fax was information (for the purposes of s 424A) that, by its very terms, did undermine the applicant’s claim to be a homosexual. That is, the core of the applicant’s claim before the Tribunal.

So it is the letter that is the information.

GUMMOW J: We do not need to hear you any more, Mr Prince.

MR PRINCE: Thank you, your Honours.

GUMMOW J: There will be a grant in each of these applications. Is the notice of appeal in the same form in each?

MR PRINCE: Relevantly, it is yes, your Honour.

GUMMOW J: This is probably a half-day case. Would counsel agree with that?

MR JOHNSON: Yes, your Honour.

MR PRINCE: Yes, I would agree with that, your Honour.

GUMMOW J: So steps should be taken, as we have been indicating earlier this morning, to file the notices of appeal as soon as possible and the Registrar will then be in contact to explain the necessary preparation under the new rules which come into force on the 1st of January next year.

MR PRINCE: May it please the Court.

MR JOHNSON: Thank you, your Honours.

GUMMOW J: Counsel should proceed on the basis that this is a candidate for the March/April sittings.

MR JOHNSON: Thank you, your Honours.

MR PRINCE: May I just say to that, your Honour, that I am getting married in February and I will be away until the first week of March. I do not want to indicate assent and mislead your Honours.

HAYNE J: We have been given enough assent, I think.

MR PRINCE: Quite so, your Honour.

GUMMOW J: We were thinking of March/April, the sittings beginning on 29 March.

MR PRINCE: Thank you, your Honours.

GUMMOW J: You will back in full force by then?

MR PRINCE: I certainly will. Yes, your Honour.

GUMMOW J: We will adjourn to reconstitute.

AT 11.03 AM THE MATTER WAS CONCLUDED