SZUBU v Minister for Immigration and Border Protection & Anor; SZTGV v Minister for Immigration and Border Protection & Anor [2015] HCATrans 158 (19 June 2015)

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SZUBU v Minister for Immigration and Border Protection & Anor; SZTGV v Minister for Immigration and Border Protection & Anor [2015] HCATrans 158 (19 June 2015)

Last Updated: 24 June 2015

[2015] HCATrans 158

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S25 of 2015

B e t w e e n -

SZUBU

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Office of the Registry
Sydney No S26 of 2015

B e t w e e n -

SZTGV

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Applications for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 JUNE 2015, AT 1.42 PM

Copyright in the High Court of Australia

____________________

MR A.M. HOCHROTH: May it please the Court, I appear for the applicant in each matter. (instructed by Herbert Smith Freehills)

MR D.A. HUGHES: If it please the Court, I appear for the first respondent to both applications. (instructed by Australian Government Solicitor)

GAGELER J: Yes, thank you. Now, is it common ground that the application in SZUBU is incompetent by reason of a provision of the Federal Court of Australia Act?

MR HOCHROTH: I am sorry, your Honour? Which application is your Honour referring to?

GAGELER J: SZUBU.

MR HOCHROTH: SZUBU? Is it common ground the application is incompetent? No, your Honour.

GAGELER J: It is not?

MR HOCHROTH: It is not common ground on my part. I was not aware there was a submission that it was incompetent.

GAGELER J: All right. It is an application for special leave to appeal from a decision of the Full Court of the Federal Court dismissing an application for an extension of time in which to institute proceedings, is it not?

MR HOCHROTH: That is so, your Honour. That is so. Leave to appeal was not granted.

GAGELER J: That is a problem, is it not?

MR HOCHROTH: Yes, it may be, your Honour.

GAGELER J: I think it might be a drop-dead problem actually. In any event, the question of principle is raised by the other case so perhaps you should proceed with that first.

MR HOCHROTH: Yes. Your Honour, can I hand up a document containing propositions of law for which I contend? The document addresses both cases. In light of what your Honour has just said, it may not be necessary to address the first three propositions which are SZUBU but, nonetheless, there is the last proposition in SZTGV. Your Honour, these applications raise difficult and important questions as to the proper construction of sections 424A and 424AA of the Migration Act, which are two of the fundamental procedural safeguards afforded to asylum seekers in Part 7, Division 4 of the Act.

The legislation is at pages 139 to 140 of the application book and I have handed up the document. In relation to the legislation, proposition 1 concerns subsection (1)(a) of section 424A. Propositions 2 and 4 both concern subsection (3)(b) of section 424A, and then proposition 3, which only concerned SZUBU, concerned the proper construction of 424AA. Given what your Honour said to me, I will address on SZTGV first.

GAGELER J: Dealing with that case, what is it that the Tribunal should have done that it did not do?

MR HOCHROTH: Yes, your Honour. Well, the court found that the Tribunal did not comply with section 424AA. The court found that the Tribunal did not jump through the hoops which it needed to jump through to satisfy, in particular, section 424AA(b)(iii):

advise the applicant that he or she may seek additional time to comment on or respond to the information –

that was put to it. Given that the Tribunal did not comply with that subsection, 424AA(b)(iii), it therefore did not fall within the exception in subsection (2A) of 424A, which is on page 140:

The Tribunal is not obliged . . . to give particulars –

et cetera, and that meant that the Tribunal was obliged to give particulars under section 424A and those particulars have to be given in writing.

GAGELER J: What would the particulars have been?

MR HOCHROTH: The particulars would have been that there was information which the Tribunal considered was a reason for affirming the decision under review, namely, that the applicant in a tourist visa application which he had made had said that he had a female de facto partner and that was information which directly undermined the applicant’s claim because his protection claim was based upon the fact that he is gay.

So the Tribunal would have needed to put that to the applicant in writing under section 424A and otherwise comply with the requirements of subsection (i), i.e. ensuring that the applicant understood why that was “relevant to the review” and “invite the applicant to comment on or respond to” it. That would have needed to be done in writing under 424A. The only way the Tribunal gets out of that is if it complies with the requirements of section 424AA, and the court held - - -

KEANE J: Except that 424A(3)(b) says that 424A(1):

does not apply to information:

. . .

(b) that the applicant gave for the purpose of the application for review - - -

MR HOCHROTH: Yes, and that is where the Full Court found against my client, but in doing so the Full Court made, in my submission, a very, very clear error. The clear error which it made is that the information which I just identified, namely, that the applicant had said in a tourist visa application that he had a female de facto partner, the Full Court explicitly considered was not the relevant information in question. That error appears in the judgment on page 94 of the application book at paragraph 50, and there at about line 10 on the page your Honours will see the Full Court said:

Nothing in the tourist visa application . . . contained a rejection, denial or undermining of the appellant’s claims.

Now, that is the error because in the tourist visa application was a statement that the applicant had a female de facto partner; that, in its terms, is at least an undermining of the applicant’s claims because his claims were based on him being gay and saying he has a female de facto partner is inherently against that. So the Full Court considered that that was not the relevant information but rather, what was the relevant information was the applicant’s, in effect, resiling from those claims – resiling from that statement.

KEANE J: In his letter to the Tribunal of 7 June 2013, which the court refers to in paragraph 50 in the last few lines, he refers to it and says:

“I am ashamed to say the above information is true” - - -

MR HOCHROTH: Yes.

KEANE J: He “admitted that the answer to question 19 was false”.

MR HOCHROTH: Yes. So, your Honour, to answer your Honour’s question I need to make some submissions about the proper construction of section 424A(3)(b) because, in my submission - - -

KEANE J: It has this certain lack of attraction to it, that you seem to be saying that if someone refers to a statement that is false and acknowledges its falsity the Tribunal then has to tell him that he has made a false statement and has acknowledged its falsity. That seems to be quite peculiar.

MR HOCHROTH: Your Honour, that is not what I am saying. What I am saying – and this is how the information was used against him – is that the Tribunal reasoned – the applicant said his statement was false, when he said he had a de facto partner that was false. What the Tribunal in effect held was no, no, I think you were telling the truth when you said you had a female de facto partner. I think you had a female de facto partner and that was true, and that is what was used against him, and that is what needed to be put to him. You said you had a female de facto partner. If I believe you – if I believe what you said on your visa application, then that is going to lead to a rejection of your claims, not you said it and you admitted it was false and that goes to your credibility, it is the reverse.

So the information, in my submission, has to be identified with precision, and that was the problem here, that the court considered the relevant information was the applicant’s admissions as to the falsity of his statement as a matter going to his credit, whereas the relevant information was the statement that he made, assuming it was true, as undermining the whole basis for his protection claim.

The submission that I wish to put, your Honour, is that it is the wrong question to ask, simply, did the applicant give the information, because the section does not just use the word “give”. In my submission, subsection (3)(b) on page 140 uses “gave”, as part of a compound phrase “gave for the purpose of the application for review”. It does not say “gave during the course of the application for review”, it says “gave for the purpose”.

We know that the wording choice is deliberate because subsection (3)(ba), which appears immediately underneath, uses a different form of words. It refers to information “the applicant gave during the process”. So, in one subsection it uses the word “purpose”, in the other subsection it uses the words “during the process” and, in my submission that form of words is deliberate and the word “purpose” there refers to the applicant’s purpose.

GAGELER J: Subjective purpose?

MR HOCHROTH: I think it is his subjective purpose, that that can be determined objectively by looking at the circumstances in which the information was conveyed in some sense. So, in my submission, what that means is that an applicant will only give information for the purpose if the applicant is putting forward that information as part of his or her positive case, as part of his case as to why his application for protection should be accepted.

So, to use your Honour Justice Keane’s example, the applicant was putting forward the falsity of his previous statement as part of his case. So that admission as to falsity, that was something he was giving for the purpose of the application. What he was not giving for the purpose of the application was the original statement that he had made in his tourist visa application that he had a female de facto partner. Quite to the contrary, he was resiling from that statement.

Now, your Honours, there are authorities on subsection (3)(b) and some of those are considered at pages 84 and 85 of the application book. In my submission, the submission I have just made as to purpose is consistent with the weight of those authorities. On page 84 at about line 20, NAZY is referred to:

expressly adopts and puts forward as part of his or her application for review –

In M55, the next case down:

expressly relied upon the terms of –

So expressly relied upon. In paragraph (4) on the top of page 85, SZEEU:

repeats the earlier statement . . . and adopts it as true –

during the hearing, i.e. putting it forward. In NBKT at paragraph 23 where Justice Young said:

There may be good reasons for requiring that the applicant affirm or actively give specific ‘information’ for the purposes of the review –

i.e. the applicant putting it forward. In my submission, what the Full Court did in this case is ignore the element of purpose in subsection (3)(b) and that can be seen at the bottom of page 85, top of page 86 where the court says:

Consistent with the reasoning of Heerey J . . . there is nothing in the text of s 424A(3)(b) which supports any distinction between information proffered by an applicant to the Tribunal of the applicant’s own volition or elicited from an applicant by the answering of the Tribunal’s questions. In either case, the applicant may have given information to the Tribunal.

That may be true, the applicant may have given information, but the question is did they give the information “for the purpose” of the review. In my submission, the word “purpose” is that textual indication which supports the distinction which the Full Court denies in this paragraph.

GAGELER J: So if the information is elicited by the Tribunal you say, as a matter of construction, it is not given “for the purpose of the application”?

MR HOCHROTH: That is so, your Honour, although that proposition was more relevant to SZUBU than SZTGV. In any event, if it is not something the applicant is putting forward as part of his case or her case then, in my submission, it is not given “for the purpose”. So, in my submission - returning to the letter which is at the bottom of page 89 – and one thing which I think is important, at least in terms of the merits of this case, is the applicant in his submission here was responding to what the case officer had said - to what the departmental officer had said - and the departmental officer had not disbelieved the applicant, had accepted that the applicant was gay.

So it is important that the Tribunal used that information in a way that was different to how the case officer had used it and that is why there is an element of surprise, as it were, in the Tribunal’s decision, at least from the part of the applicant, where, here in the letter, there is a section from the case officer set out which includes that in the tourist visa application:

the applicant stated that he was in a De facto relationship –

and the applicant then says he “decided to forge some documents” et cetera, over the page on page 90. Now, in my submission, the information which is put forward by the applicant is not the same as the information that was on the visa form, because on the visa form there was a simple statement, the applicant said, “I have a female de facto partner and here is her name”. The applicant in this submission was putting forward a different piece of information, namely, “I once said I had a female de facto partner but what I said was false”. That, in my submission, is a discrete and different piece of information. That is what the applicant was putting forward in support of his case, but it is not the information which was relied upon by the Tribunal to affirm the decision under review.

Now, in my submission, your Honour, this particular question as to subsection (3)(b) raises a matter of general importance. The authorities are in conflict. Clearly, the Full Court considered the authorities were in conflict. It said on page 84 at paragraph 22 that there were different approaches which had been taken. Some courts have, in my submission, in effect adopted what I have said in relation to purpose, whereas others have said, well, if the Tribunal asks you a question and you say “yes, that happened” then that is enough, even if you are not putting that forward as part of your case.

In my submission, those later authorities that say if you simply answer yes to a Tribunal’s question, even though you are not putting it forward as part of your case, in my submission, those authorities are incorrectly decided in this Court ought to clear up the question particularly having regard to the discord in the authorities. Your Honour, that is all I wish to say about that particular question - - -

KEANE J: Your client incorporated this information, or at least referred to it. I mean, he might not have put it forward as part of his case but he provided it. I mean, provided it as part of his case in the sense of affirmatively supporting it, but he provided it by way of – I mean, not by way of endorsing it, but for the very purpose of resiling from it. It is information that clearly he must have understood was information that was before the Tribunal.

Now, to the extent that he did not appreciate the precise use which the Tribunal might make of it might give rise to some question about procedural fairness and the conduct of the hearing, but your case is based on this view of the effect of the statute. So far as the statute is concerned, there cannot be any doubt that he understood that this information, both the assertion that he had a de facto partner and the assertion that it was untrue, were both before the Tribunal.

What possible purpose would it serve? I know you say you read the statute, but what possible purpose would a provision requiring the Tribunal to give him particulars, not of the significance of these statements one way or the other - different question, procedural fairness – but just that it had this material before it?

MR HOCHROTH: Well, the Tribunal does have to give particulars of the significance. That is also required by section 424A and AA. The Tribunal has to explain the significance and has to say, with this material - if I accept your statement in your tourist visa application - you tell me I should not accept it, but if I do accept it, that undermines your claim. Now, there can be no doubt, as your Honour has said, that my client, at least in some extent and sense, gave the information to the Tribunal, but the question is did he give it for the purpose. Bearing in mind, your Honour, that my client does not have any rights of procedural fairness at large - section 422B provides that the contents of these sections and others is an exhaustive statement of - - -

KEANE J: So does your case depend then on the notion that for the purposes of the review it is to be understood as subjectively for the purposes - subjectively by the applicant for the purposes of advancing his case?

MR HOCHROTH: Whether there is an inquiry as to what is in the applicant’s head I think is not the correct inquiry. The correct inquiry is, viewed objectively, what was the applicant putting forward in support of his case? And viewed objectively, looking at the letter, just looking at the terms of the letter, the applicant was not putting that forward in support of his case. He was putting forward, in fact, the converse, the falsity of the information in support of his case. So I do not submit it would require, for example, an inquiry into what was precisely in the applicant’s head at the time. It could be determined on the objective material and should be determined on the objective material. But the word “purpose” has to be given some work to do, in my submission, in subsection (3)(b) and it had not been given any work to do by the Full Court.

KEANE J: You say it cannot be said that he put it forward for the purpose of expressly resiling from it?

MR HOCHROTH: Yes, I do. I do, I say that is not putting it forward. What you are putting forward is the resiling.

KEANE J: It is saying, look, I told this lie once but that was a lie.

MR HOCHROTH: Yes, and indeed explaining the circumstances in which he came to give the lie, which is what he did.

GAGELER J: Is there something more you want to say?

MR HOCHROTH: That is all I wish to say about SZTGV. In light of what your Honour has said about SZUBU I may not need to deal with the other questions, unless your Honours wish me to do so.

GAGELER J: No, thank you. Mr Hughes, we do not need to hear from you.

In SZUBU, the application is for special leave to appeal from a decision of the Full Court of the Federal Court dismissing an application for an extension of time in which to institute an appeal to that court. The appeal would be incompetent in this Court by reason of section 33(4B) of the Federal Court of Australia Act 1976 (Cth). The application for special leave to appeal is therefore futile. The application will, for that reason, be refused with costs.

In SZTGV, we are not persuaded that there is any error in the Full Court of the Federal Court’s construction or application of section 424A(3)(b) of the Migration Act 1958 (Cth). The application also will be refused with costs.

The Court will now adjourn to 10.15 am on Tuesday, 4 August in Canberra.

AT 2.05 PM THE MATTERS WERE CONCLUDED