SZQUR v Minister for Immigration and Citizenship & Anor [2013] HCATrans 67 (15 March 2013)

Last Updated: 22 March 2013

[2013] HCATrans 067

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S268 of 2012

B e t w e e n -

SZQUR

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

PETER GACS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH 2013, AT 1.01 PM

Copyright in the High Court of Australia

MR S.E.J. PRINCE: Your Honours, I appear for the applicant with my learned friend, MR B.C.A. BRADLEY. (instructed by Clifford Chance)

MS R.S. FRANCOIS: If the Court pleases, I appear for the first respondent. (instructed by Clayton Utz)

BELL J: Yes, Mr Prince.

MR PRINCE: Thank you, your Honours. Can I turn to a most unusual aspect of this case first, which is that it raises the issue of whether there can be a denial of procedural fairness where an applicant complies with a procedure established by a decision-maker and then thereby exposes himself to criticism for not having raised a matter at a particular stage of the proceedings.

So here what happened was the applicant was told that there would be questions and answers, then the adviser would be able to make statements. Then, if there was anything that the applicant felt had not been covered, the reviewer would come back to that at the end and the applicant would be free to expand on anything that had been dealt with during the course of the questioning.

That is exactly what happened and the applicant, at the end of the hearing, expanded on, at the very least, the question of what information his aunt had recently given about the taking of his father when he was eight years old by the Sri Lankan army – a matter about which he would otherwise have no real contemporaneous understanding one would expect. The reviewer criticised the applicant for having dealt with that matter towards the end of the hearing, but in doing so the applicant was simply following a procedure that the reviewer himself had set forward.

There had been no warning when the procedure was originally advised to the applicant at the beginning of the hearing that if he failed to mention something early on and took up the opportunity that had been extended to him to expand on what he had said that that could somehow prejudice him and, indeed, that was not really put to him during the course of the hearing at all. So that what is done is that he has been put in jeopardy for following the very procedure that has been set down.

In that sense, it is a bit different to Lam and NAAF because in those cases the procedure which was established by the decision-maker was not followed through with, that is, the question was whether the reviewer created content for the duty to accord procedural fairness by establishing a procedure and then whether departure from that could constitute a denial of procedural fairness. The issue here, to the contrary, is whether the very following of the procedure set down by the reviewer himself could involve, itself, a denial of procedural fairness and, on the facts of this case, in my submission, that is what has happened. So that is the novel point that is raised by the appeal.

BELL J: Could I raise with you whether the facts do in fact support the ventilation of that novel issue? If you go to application book 92 at paragraph 56 in the Full Court it is – this is in the reasons of Justice Emmett – that his Honour did not consider that the suggestion that the reviewer had steered the applicant away from giving relevant evidence was fairly open, having regard to the transcript of the interview. That is something of a hurdle for you, is it not?

MR PRINCE: Not on this aspect of the special leave application, your Honour, for this reason. The point is that his Honour Justice Emmett was distracted by the question of whether or not the applicant had been steered away or had been cut off from his answers in explaining what had happened with the aunt. That was certainly an issue in the appeal. But it is not an answer to the issue that I have just raised with your Honours now because irrespective of whether the applicant could have expanded, during the course of the questions, or was steered away during the course of the questions, the point is that he was invited at the beginning of the hearing to expand on any answers he felt needed to be more comprehensively covered at the end of the procedure.

KEANE J: Where do we see Justice Emmett dealing with the issue that you are raising now?

MR PRINCE: He does not, your Honour, and that is our complaint.

KEANE J: Was it raised before him?

MR PRINCE: Yes. There is some criticism in my learned friend’s summary of argument, but can I make that good by taking your Honours to page 148 of the book? This is the transcript of the hearing before his Honour Justice Emmett. I should say, your Honour, it was a Full Court in a sense but it was just Justice Emmett.

BELL J: Yes.

MR PRINCE: So that if your Honours go to line 50 on page 148, the submission that I made there was that there has been a process set up by the reviewer at the outset. He is following the process that has been set down by the reviewer and then at the end of it he is criticised for not having raised the point effectively following the procedure that has been put in place by the review. Then, if I can take your Honours over to page 151 of the book, at the top of the page, another submission below was:

But the reviewer has created this issue about timing. That issue arose because of the very procedure that the reviewer imposed on the appellant, and the appellant obeyed and followed.

BELL J: But, Mr Prince, it does seem to me that perhaps the two matters are rather related in this sense. The reviewer drew a certain inference from the circumstance that at a late stage in the interview the information concerning the content of the things the auntie had said emerged, in a context in which there had been - at the outset it was explained that the reviewer understood the applicant had matters that he wished to convey to the reviewer and explained he would be given that opportunity and how then his lawyer might have an opportunity to convey matters to the reviewer and then he would have a further opportunity.

The reviewer drew an inference from the circumstance that during the course of the interview the applicant did not come forth with this material on occasions when it might have been expected that he would. Now, that is an inference that a person arriving at factual findings might reasonably make, is it not? If he was steered away from it in a way that precluded him from giving the material that might be a different matter, but that does not seem to be an inference that Justice Emmett considered fairly open when one read the whole of the interview.

MR PRINCE: Well, your Honour, I suppose the answer to that is that one has to go back to what the procedure was that was set up by the reviewer at the outset, and that was if there is anything further that you do not think has been fully covered in the questions, then you can elaborate on that later. So that if your Honours go, for example, to page 124 of the book – this is at the outset of the interview – in the first passage on that page, your Honours will see that the applicant, and HG is the applicant, says in the third sentence:

I spoke to my auntie in recent months and she told me the details about his arrest.

The line of questioning then goes off in a different direction. But whether he is steered away or not, he has clearly raised at the outset the issue about the auntie having provided details about the arrest and then he then comes back to elaborate on that and to expand upon it towards the end of the hearing. That is the very procedure which the reviewer had contemplated would occur and it is the very procedure that the applicant was told he could avail himself of, but without being told that there might be some penalty for him in adopting that procedure which had been offered to him.

So whether or not what follows was a steering away or not in a sense becomes a distraction. It was important below because the federal magistrate had made a finding that he had in fact been steered away from that particular issue and that the criticism of the reviewer was incorrect about him not having raised the issue first, largely because of that passage that I just took your Honours to. It is plain that he has at least alluded to and talked about the fact that the auntie had provided details about the arrest in recent times. So that the timing of his elaboration of what those details were becomes key, only because of the way in which the reviewer made his decision.

From your Honour’s questions, I gather that your Honour well has that point, and it does not seem to have been an issue below that it is the timing of the explanation about what it was that the auntie had said was critical. That was because for some reason the reviewer had thought that up until that point in time there had not been any formulation or specific tying of the fact that the Sri Lankan army, in the middle of a conflict with the Tamils in the north of Sri Lanka had taken the father and he disappeared for good, somehow had some connection with the LTTE.

So the reviewer was taking the view that there had not been that connection specifically put forward and when the auntie provides the explanation that is the missing link but I can disregard that because it has come too late in the piece. Well, that is obviously a critical piece of the jigsaw so far as the reviewer has framed the picture because the reviewer finds that he does not have to. He accepts the arrest occurred. He accepts the mother had a breakdown immediately after the arrest. He accepts that they moved to Colombo immediately after the arrest. He accepts that the applicant went to India for a period of time and he accepts that it was the army who took the father and he accepts that the father disappeared and has not been seen of since.

So all of the elements are there; this is not a case where credit really disturbs any of those issues. What the credit finding goes to is the link between the army taking the applicant’s father, a matter about which he could have known nothing at the age of eight, and the LTTE. So that, in my submission, the injustice that has occurred here is at that point about the applicant being prejudiced by relying on the very procedure that the reviewer put forward has never been the subject of any judicial consideration. So that he has not had that, because of the way the case has seesawed on the findings of fact about when he first raised the point.

That overarching fundamental point about being prejudiced for following the procedure just has not been dealt with. So that is the injustice. The consequences obviously if the applicant does have a fear of persecution in Sri Lanka of not having those matters ventilated and dealt with are severe. The interests of justice would warrant the grant of special leave.

There are other issues about the problems with the finding of inconsistency which are dealt with in my written outline of submissions, the word “about” and the like. I will not trouble your Honours with that. Those matters would flow, in my submission, but it really is fundamentally an anathema to procedural fairness for somebody with the power to make a decision about somebody to invite them into a process and then to criticise them for following it. Thank you, your Honours.

BELL J: Thank you, Mr Prince.

If special leave to appeal were granted in this matter the appeal would have insufficient prospects of success. Special leave is refused.

MS FRANCOIS: Your Honour, may we have an order for costs?

BELL J: Anything to - - -

MR PRINCE: There is nothing I can say about that, your Honour.

BELL J: With costs.

Would you adjourn the Court until 10.15 am on Wednesday, 3 April in Canberra.

AT 1.16 PM THE MATTER WAS CONCLUDED