SZOIN v Minister for Immigration and Citizenship and Anor [2011] HCATrans 242 (2 September 2011)

Last Updated: 6 September 2011

[2011] HCATrans 242

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S140 of 2011

B e t w e e n -

SZOIN

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2011, AT 2.30 PM

Copyright in the High Court of Australia

MR R.T. BEECH-JONES, SC: If the Court pleases, I appear with my learned friend, MR L.J. KARP. (instructed by Kinslor Prince Lawyers)

MR T. REILLY: If your Honours please, I appear for the first respondent. (instructed by Australian Government Solicitor)

FRENCH CJ: Thank you, Mr Lloyd – I am sorry, Mr Reilly. I thought you did not look like Mr Lloyd.

MR REILLY: Yes, I am sorry, Mr Lloyd is detained with the Solicitor-General.

FRENCH CJ: Yes, very well. Yes, Mr Beech-Jones.

MR BEECH-JONES: Thank you. Your Honours, there are, we submit, two quite intimately related points of principle that arise from this application. The first concerns whether a failure on the part of the Secretary to comply with the statutory obligation in section 418(3) to provide material to the Refugee Review Tribunal can contribute or result in jurisdictional error, to use the words of Justice Gaudron in Muin and, if so, in what circumstances. The second concerns the status of the decision of the House of Lords in the decision in Ex parte A in this country, and its application to bodies such as the Refugee Review Tribunal, points we submit have an ongoing significance to the workings of these types of bodies, that is, the immigration tribunals and other administrative bodies.

KIEFEL J: It is said against you that the decisions in Ex parte A really shows up the difficulty for you because in that case the document was critical and here, that is really the point, is it not? It is put against you that the medical report might have been afforded some kind of explanation for inconsistencies or evidence of the applicant, but it cannot really be said that it was essential to the outcome.

MR BEECH-JONES: Your Honour, can I answer that in two ways. I will take your Honours at some point, if I can, to Ex parte A. What was said in Ex parte A was in fact that their report was, we submit, on critical matters, which was the corroboration of the victim, not so much that the report itself was critical. Secondly, the findings of the three members of the Full Court were that it was, I think, “clearly relevant” in the cases of Justices Bennett and McKerracher, and in the case of Justice Rares that it was, I think in the words of Justice Brennan in Kioa, “credible, relevant” and significant” and, in my respectful submission, without excluding that it had a wider significance, that is, a greater significance.

So that their Honours were not meaning to foreclose that you could have used some other label. What was critical in the Full Court was an understanding, we respectfully submit, wrong, that Muin and a case of the Full Court, WAGP, foreclosed this argument that 418(3) could ever get you into the area of jurisdictional error. So that, with respect, we do not see in terms of the underlying significance of the material one could say this is clearly a different case to Ex parte A. Could I just - - -

FRENCH CJ: It goes to prospects of success, I suppose, does it not?

MR BEECH-JONES: The prospects of its success may be dependent upon what the answer to the question is, what circumstances does a failure to comply with section 418(3) get you to jurisdictional error. Of course, one has to form some sort of judgment of the significance of the material, but what we have is – needless to say it goes without saying that this Court would be in a position to judge that – but my point being what the Full Court were not meaning to deny or contrast by saying it was merely relevant – I think their Honours accepted its significance.

Could I just address that in this way, your Honours, without going over the facts in any great detail? Could I just take your Honours to page 24 of the application book, which is part of the “Findings and Reasons” section of the Tribunal’s decision, in the paragraph beginning “Attached”. It says:

Attached to the applicant’s Protection visa application is a statement outlining his claims . . . During his Departmental interview he mentioned for the first time that he had gone through an initiation process in November 2008.

I will not need to take your Honours there, but that is outlined in some detail at page 11. That is a process involving physical mistreatment by a militant group known as MEND, and for the emancipation of the Niger Delta and - - -

FRENCH CJ: He attached that to his Christian beliefs, or association with a Christian group, did he?

MR BEECH-JONES: In part, indeed, a perceived opposition to them, but in effect, the initiation was an attempt, as it were, to – I think that phrase suggested an attempt to inculpate him into the group but, on any view, it involved significant physical mistreatment and, in one sense, it was a claim that in and of itself was capable of establishing the refugee definition. It goes on:

He told the delegate that he had not mentioned it in his application because when he talks about it he experiences nightmares and bad dreams so he tries to block it out. During his evidence before the Tribunal he said he did not go into detail because he did not know he needed to put everything on paper.

I think there were two Tribunal hearings of significance. One was on 4 December 2009 and the other one was on 31 December 2009, and that is a reference to 31 December 2009. The Tribunal went on:

He said when the Tribunal asked him about the matter he was able to give detailed information. He also said that recalling the event causes him trauma.

Those dates, 4 December and 31 December 2009 being the Tribunal hearing, of course, the significance when one finds out about the dates of the report, and if I could take your Honour to page 65 of the application book because their Honours Justices Bennett and McKerracher set out the details of the report. The report is dated between the two dates of the Tribunal hearing. It says it was produced on 8 December 2009 – that is at line 41 – and as your Honours will see at line 49:

The focus of the report was said to be to ‘ascertain whether [the appellant’s] symptoms are consistent with his experiences’.

There are some matters noted about the report. Over the page, your Honours, page 66, under the heading “Avoidance of triggers” at about line 22, the author recounts something that is emphasised by the members of the Full Court:

intrusive memories, flashbacks and accompanied psychological distress . . . are often brought on by talking about the traumatic events . . . As such [the appellant] reportedly attempts to avoid conversations about the events and thinking about his traumatic experiences.

Then it goes on in some detail at the bottom of page 67. There are some parts that are emphasised, and at the very bottom of the page, after the bold passage, the author continues:

As [the appellant’s] PTSD symptoms reportedly have been present for a few months now and are causing [the appellant] clinically severe distress and impairment in his overall functioning, a diagnosis of chronic [PTSD] is reasonable.

Then under the heading “Subsequent reports and hearings” on the same page, there is a reference to another psychiatrist. The report’s details are not set out in detail, but we would respectfully submit they are consistent with, but perhaps not as expansive as the first report.

Can I just make these two points? The significance of this in the context of his application was twofold. Firstly, it provides, we would submit, what could be seen as a cogent explanation for what was seen by the Tribunal to be critical to its adverse finding against him, and in particular, on that specific claim about initiation, namely his refusal at various times to discuss or recall any details. Secondly, it was in effect, we would submit, corroborative of his claims in an overall sense in the fact that he was, at least in the opinion of the psychiatrist, experiencing a well-categorised set of symptoms which were consistent with his experiences, and in that sense, was a form of corroboration of his claims, and the members of the Full Court – and we do not in itself criticise their Honours for this – did not have to go to address that matter. They simply started from the position that it was clearly relevant, but without developing its relevance beyond that, and your Honours, the findings of Justices Bennett and McKerracher on that are at page 78. In the first full paragraph on that page, their Honours say:

there can be no doubt that the documents were relevant, as they were capable of explaining not only the demeanour of the appellant in the course of giving his evidence but also his unwillingness or inability due to his mental condition to discuss the very issues involving trauma resulting from his claimed treatment by the militia.

We would respectfully add “and in fact, were capable of corroborating his claims”. Justice Rares, who differed on the operation of section 418, but in the middle of page 88 at line 34, described the material as:

credible, relevant and significant to the decision –

and to perhaps repeat what I said in answer to your Honour Justice Kiefel’s question, if we are putting labels on it and, in my submission, that can be a distraction when the focus was really what the consequences of a breach of 418(3) are, Justice Rares has said it is significant to the decision but, of course, that is material that a court if, depending on what the answer to the question is, that the court could determine for itself.

We have set out in our outline the passage from Muin from Justice Gaudron, that is, her Honour considered that of course a breach of section 418 could lead or contribute or result in jurisdictional error, and we submit that none of the other judgments in that case exclude that either.

FRENCH CJ: But what is the logic of that proposition, jurisdictional error being something which vitiates the power of the decision-making body?

MR BEECH-JONES: The logic is, we submit, the next step being the process of reasoning the Court undertook in SZFDE, which in that case always involved third-party fraud, but the effect of that conduct in that case was described as stultifying the review process.

FRENCH CJ: The people did not turn up because they were told they should not, and wrongly told.

MR BEECH-JONES: Indeed, and the question that was asked by me unfortunately rhetorically was, what is the consequence of that in jurisdictional error, and the court’s emphatic answer was the result of that was that the embodiment of natural justice, which is in section 425, of the opportunity to appear before the Tribunal and address on the matters arising was stultified because of the intervention of the third party fraudster. In this case, where a person, we submit – and we admit the analogy is imperfect, but we submit it is closer because it is a step in the statutory process, that the effect of this is, in effect, to deny him his ability to put his case forward on the understanding - - -

FRENCH CJ: What is the scope of the proposition? Does it mean this, that if the Secretary fails to comply with the duty to forward documents to the Tribunal in any respect, it vitiates the - - -

MR BEECH-JONES: No, I accept Muin is inconsistent with that, and I do not say that.

FRENCH CJ: What have you got then? What is the threshold?

MR BEECH-JONES: If the result of the failure to comply is, in an effective sense, to result in stultifying him presenting his case to the Tribunal in a material way, then there is a breach of natural justice. That, we submit, is what her Honour is envisaging and, in a sense, is analogous to Ex parte A, and that is what the analysis was in SZFDE at an extreme case, because they did not get there. But it was not held in SZFDE that they were not given the invitation, as in the mechanics of the statute were engaged - - -

KIEFEL J: But given that there has been a decision in this case, do you not have to look to the reasoning employed to see if there is a fact or a step in reasoning to which this material would have been relevant, so that you are actually addressing not a question in abstract, but the question whether or not it could be said that his inability to put it forward could have had any effect upon the reasoning?

MR BEECH-JONES: I accept that, your Honour, and that passage from the reasoning, in my submission, back at – I think it was page 24 – that is the reasoning, we would submit, and indeed, we took their Honours in the Full Court to be accepting this, that the Tribunal was taking the fact that he did not at various times outline these events as adverse to, effectively, his credit. This is in the passage from lines 33 to about 52, that full paragraph. The Tribunal’s reasoning is:

The Tribunal does not accept that the applicant would have omitted such details in his Protection visa application, had he been abducted, blindfolded and threatened, as claimed. The Tribunal is of the view that such evidence is extremely significant and had it happened, it would be referred to in his Protection visa application. The Tribunal notes that it was mentioned for the first time at the end of the Departmental interview when it was quite clear to the applicant that the delegate had serious reservations about the applicant’s claims - - -

KIEFEL J: Did the departmental interview occur before the medical report?

MR BEECH-JONES: Yes, your Honour, it did. The departmental interview was on 30 October 2009. The medical report was on 8 December 2009 - - -

KIEFEL J: What could be said is that his later narrative of his symptoms to a psychiatrist might have impacted upon these matters. The timing is the problem, is it not?

MR BEECH-JONES: With respect, no, your Honour. We say it is a bit stronger than that. We would say the psychiatrist – not only the reciting of the narrative, but the psychiatrist’s assessment would have been relevant - - -

KIEFEL J: But the assessment depends upon the narrative, and the Tribunal has really said that because he did not mention it at the earlier points – and that is the content of its finding.

MR BEECH-JONES: Firstly, yes, of course, the psychiatrist’s assessment is dependent upon the narrative, but it does involve their own expertise as well, that is, are these symptoms consistent with his condition. That is the first point. The second point is, the critical decision-maker here is the Tribunal, and these are so close in time that that material, we would submit, would have been powerful to say to the Tribunal this condition was clearly operative back in October. It is only a month or so before the

Tribunal hearing, and that is equally applicable to when he was before the delegate.

The Tribunal’s reasoning involves, and it is clearly logical, an acceptance if this event of this kind had happened, you would have mentioned it. The psychiatrist’s report which involves both his narrative with the psychiatric assessment, which involves some degree of checking of that and an indication of its consistency with established psychiatric criteria, was, we submit, a powerful answer to that reasoning.

That, we submit, does drive this case to the point of saying it is not just a mere breach of section 418(3). It is something that stultifies, to use the words of SZFDE, its ability, his opportunity to put his case. Just before I mention briefly Ex parte A, the relevant part of the reasoning of Justices Bennett and McKerracher as to why my client lost begins at the bottom of page 79:

Is the Secretary’s breach, a Tribunal breach?

The Minister argues that any breach of s 418(3) is not jurisdictional error by the Tribunal because the section imposes no obligation on the Tribunal.

Over the page, their Honours start by saying:

The circumstances in which a third party breach not known to the Tribunal may result in jurisdictional error would be extremely limited.

Their Honours discuss SZFDE. The point we make about this reasoning is twofold: firstly, that Justice Gaudron left open in Muin, and we submit as a matter of – it is consistent with SZFDE that a breach of section 418(3) not of itself can constitute jurisdictional error, but it may result and contribute to one, and that secondly, if their Honours meant to describe what occurred here as an analogous breach to a third party breach, we would submit that that analogy is wrong, with respect, because this is not a third party. This is a statutory responsibility under the statutory scheme. Your Honour, I have the red light.

FRENCH CJ: Yes, you do, Mr Beech-Jones. Thank you. Mr Reilly, we will not need to trouble you.

The applicant in this case seeks special leave to appeal from a decision of the Full Court of the Federal Court which held that a failure by the Secretary of the Department of Immigration and Citizenship to provide to the Refugee Review Tribunal medical and psychological reports relevant to the applicant’s state of mind and thereby to his credibility in proceedings in the Tribunal, did not amount to jurisdictional error on the part of the Tribunal.

The Full Court held that the failure of the Secretary to provide the report was in breach of the duty imposed by section 418(3) of the Migration Act but that it could not constitute or give rise to jurisdictional error. The reports were not directly relevant to the applicant’s claim for a protection visa. They were said to have been relevant to explain deficiencies in the applicant’s evidence before the Tribunal.

In our opinion, the prospects of success in demonstrating jurisdictional error on the part of the Tribunal on account of the Secretary’s failure to deliver the documents to the Tribunal are not sufficient to warrant the grant of special leave. Special leave will be refused with costs.

The Court will now adjourn.

AT 2.52 PM THE MATTER WAS CONCLUDED