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SZBDM v MIMIA [ 2006] HCATrans 679  (8 December 2006)

SZBDM v MIMIA [ 2006] HCATrans 679  (8 December 2006)

Last Updated: 15 December 2006

 [2006] HCATrans 679 

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S412 of 2005

B e t w e e n -

SZBDM

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 DECEMBER 2006, AT 12.26 PM

Copyright in the High Court of Australia

MR R.W. KILLALEA: I appear for the applicant, your Honours. (instructed by NSW Legal Exchange)

MR J.D. SMITH: If it please the Court, I appear for the respondent. (instructed by Clayton Utz)

GUMMOW J: Yes, Mr Killalea.

MR KILLALEA: Could I pass your Honours three documents. I will deal with those very shortly. One, your Honours, is an amended application. When this matter was first on the applicant was unrepresented and that is an amended application which reflects the draft notice of appeal, so there is nothing in there that is not in the draft notice of appeal. If I might have leave to - - -

GUMMOW J: Yes, go on.

MR KILLALEA: Your Honours were also provided with a transcript. I do not propose to take your Honours to anything in that transcript. It is a transcript of the relevant Tribunal hearing and I simply make the point, and my friend is with me on this, that there is nothing in there contrary to what is being submitted to you in the way that the Tribunal dealt with the applicant. The third document, your Honours, is headed “COURT BOOK” but your Honours will see a statement attached to that and that is the originating statement of the applicant and it is in particular paragraph 11 of that statement which figures in the dicta of the court.

HEYDON J: Your argument is that the point should have been taken up specifically by the Refugee Review Tribunal with the applicant and he should have been told, “Look, I don’t at the moment see that your house was ransacked and looted, I don’t accept at the moment that one of your brothers was beaten”, that that sort of approach should have been taken.

MR KILLALEA: Yes, and in particular in relation to the house. That is the - - -

GUMMOW J: In relation to?

MR KILLALEA: The house being ransacked and looted.

GUMMOW J: Yes.

MR KILLALEA: We simply say that there is nothing in the transcript to the contrary, that is, the Tribunal did not raise that issue with the applicant or - - -

GUMMOW J: What did the Tribunal say about the ransacking?

MR KILLALEA: What the Tribunal said about the ransacking - - -

GUMMOW J: It is about page 7, is it, somewhere in the book?

MR KILLALEA: Page 20 of the Tribunal’s decision at line 22:

The applicant claims that he left his home on 1 October 2001 - - -

GUMMOW J: Which page of the application book are you reading from?

MR KILLALEA: Page 20.

GUMMOW J: Yes, okay.

MR KILLALEA: At line 22 the paragraph begins:

The applicant claims that he left his home on 1 October 2001 and that he moved to a number of different places before he left Bangladesh. In his written claims he claims that following the election his home was ransacked and his brother beaten although at hearing he stated that all his brothers lived in Saudi Arabia. He did not repeat the claim that his house was ransacked at hearing but stated that his mother had to move a number of times because of threats and harassment. This evidence is unsatisfactory for a number of reasons. Firstly he does not give a reason as to why he fled his home, he does not identify the persons he fears, he has not specified the nature of the harassment or the threats made - - -

GUMMOW J: It is the last sentence there, about line 37, “The Tribunal is not satisfied that his house was ransacked”.

MR KILLALEA: Yes, and they simply asked him nothing about it. What the Tribunal did do in terms of exercising its inquisitorial function, if I could take your Honours back to application book 7 at line 11, “The Tribunal asked the applicant how he was able to continue Chattra League activities”. In the next paragraph, “The Tribunal asked the applicant about his involvement with the Chattra League”. Line 20, “When pressed”, they pressed him about that matter. At line 26, “The Tribunal asked the applicant how decisions were made by the committee”.

At line 29, “The applicant agreed”. At line 35, “His role was to organise and lead 4 colleges in his area. When asked to describe the policies”, so all through application book 7 into application book 8 and 9,
the Tribunal raises all sorts of issues with him, as properly it might, in relation to his application. What it does not do is ask him anything about what he is claiming at paragraph 11 of his statement, and that is that after the election on 2 October 2001 his house was ransacked and looted. I submit that in the context of a - - -

GUMMOW J: Is there any general finding of lack of credibility against your client by the Tribunal?

MR KILLALEA: I would say not. There is a general finding in relation to satisfaction, but I did not gather anything as to a lack of credibility. So the applicant has gone before the - - -

GUMMOW J: Yes, thank you. We would be assisted if we hear from Mr Smith at this stage, Mr Killalea.

MR SMITH: If the Court pleases. The proposition that the applicant wishes this Court to consider and to accept is that where there is a general and understated claim made in a protection visa application but not repeated at a hearing, then the Tribunal must, in order to afford procedural fairness and to fulfil its obligations under the statutory regime, prompt an elaboration - - -

GUMMOW J: What is the standing of this statement of 12 paragraphs? We were taken in particular to paragraph 11.

MR SMITH: That statement was made in support of the application for a protection visa and it contained the applicant’s particular claims upon which he based his claim to be a refugee when asked to fulfil the criteria of section 36 of the Migration Act. That was considered by the delegate and when the application was refused by the delegate this statement went with the other relevant papers to the Tribunal.

GUMMOW J: Yes, that is right.

MR SMITH: So it was considered by the Tribunal as part of the material before it, which is why at page 7 of the application - - -

GUMMOW J: But you seem to be complaining that it is somehow against the applicant’s position that he should have orally re-agitated paragraph 11 when he was giving his statements to the Tribunal.

MR SMITH: Not necessarily. It is not necessarily a circumstance that the Tribunal does not - - -

GUMMOW J: Obviously the Tribunal had it because it specifically said it was satisfied that his house was not ransacked.

MR SMITH: Yes, that is right. It referred to it in both the – when it set out the evidence before it and claims made with all of its findings. The difficulty with the proposition put forward by the applicant in this respect is that it requires the Tribunal, before it can make any decision at all, to prompt an elaboration of what is otherwise a very bland statement, in other words, to give the applicant a chance to expand upon or make further claims in detail, and that proposition simply has no support in the authority. In fact, it is inconsistent with authority and it also has no support - - -

GUMMOW J: Just a point on procedural fairness, which is obviously bound up in the particular situation, the Tribunal said it was not satisfied that his house was ransacked. It did not say why and did not question him as to why his statement was to be disbelieved.

MR SMITH: Well, in this respect the claim that the house was ransacked was wrapped up in other claims: one, that he had left his house in October 2001; two, that his house was ransacked and his brother was beaten; and he also gave evidence at the hearing that his mother had moved house a number of times because of threats and harassment. The Tribunal dealt with that at page 20 of the application book and one of the reasons given was that the evidence was overly generalised and confusing. That must mean that that is the Tribunal’s appreciation of the evidence in light of everything - - -

GUMMOW J: The ransacking was important, was it not, because at line 39 they say, “Other than his claim relating to the ransacking of his home the Tribunal makes no claim of mistreatment by [political operatives]”, right?

MR SMITH: Yes.

GUMMOW J: But they have said they have just passed that over because they are not satisfied about it. Well, you might have thought you would want to be satisfied or dissatisfied about that in some specifics before you passed it over when it was the only pivotal matter, I suppose.

MR SMITH: Well, one of the matters that the Tribunal did take into account was that it was not mentioned at the hearing. Now, it is important to understand in that context that throughout the hearing, as Mr Killalea has pointed out, the Tribunal did prompt elaboration of various claims, not only by asking specific questions or pressing the applicant on specific points - - -

GUMMOW J: Well, that cuts both ways, you see.

MR SMITH: It does, your Honour, but the Tribunal asked open-ended questions such as why he feared returning to Bangladesh. The question really for the Court is whether the applicant was given the opportunity to present his case properly, a reasonable opportunity, and when it is seen that the Tribunal did ask questions throughout the hearing that it was obliged to conduct and prompted by open-ended questions, anything the applicant had yet failed to say, then it is difficult to see outside of any specific obligation that the Tribunal has failed to give him every opportunity to put forward the claim as best as he can.

As your Honour Justice Gummow said in Abebe with Justice Hayne, really it is a matter for the applicant to put forward the evidence that he or she wishes to rely upon in support of the application and then for the Tribunal - - -

GUMMOW J: Well, he did at paragraph 11.

MR SMITH: Yes, then it is for the Tribunal to consider whether or not it accepts it, and it did that at page 20.

GUMMOW J: Well, yes, all right.

MR SMITH: It is not a matter, as a matter of fairness, for the Tribunal to make the claim for the applicant, to seek to draw out any further details that the applicant might have in respect of it.

GUMMOW J: What happened, if anything, on this aspect of the case before Justice Conti in the Federal Court?

MR SMITH: Justice Conti had the argument before him. Really it was an application for leave to argue the point, because it was not raised before Federal Magistrate Driver.

HEYDON J: Paragraph 29 on page 52?

MR SMITH: Yes, your Honour, paragraphs 28 and 29 is where his Honour dealt with that point. Firstly, it was argued that the matter came within the principles discussed by the Full Court in WACO, which was no more than an application of the propositions in cases such as Commissioner for Revenue v Alphaone. Secondly, his Honour took up what your Honour Justice Gummow said in the joint judgment with Justice Hayne in Abebe, and that is it is an inquisitorial process, it is not a matter for the Tribunal to seek to test or contradict - - -

GUMMOW J: What was the particular complaint in Abebe, can you remember?

MR SMITH: The complaint in Abebe was that there was a claim that the applicant had been raped in detention and that claim, firstly, was dealt with at a level which meant that the Tribunal did not have to make a specific finding about the rape, but the complaint upon the application in the original jurisdiction was that the applicant was denied natural justice because the Tribunal did not suggest to her that she would not be believed in that claim, which is similar, in a sense, to one aspect of this case, that the applicant put something forward in a general way and it is simply not believed.

It is similar also to the case of Applicant S154, which is referred to in my summary of argument, where an applicant was asked questions to a certain extent about a claimed rape, but left halfway through when the applicant became upset about it, and it was suggested that the Tribunal should have gone further in the questioning rather than leaving it at an extent where the applicant may have considered that her claim was accepted.

GUMMOW J: Yes, but in Abebe the decision had been that the applicant was not a reliable witness and her credibility was very doubtful. Now, is there is a finding of that nature here?

MR SMITH: No, there is not.

GUMMOW J: Well, that is what worries one.

MR SMITH: Well, in this case what the Tribunal did was to consider each factual claim as made on the strength of the evidence and upon the weight that the Tribunal accorded to each of the evidence in light of the whole of the evidence, in light of everything given to the Tribunal by the applicant for the review and in the application itself.

GUMMOW J: What did Federal Magistrate Driver say on this point, if anything?

MR SMITH: It was not raised before his Honour Federal Magistrate Driver.

GUMMOW J: Hence the problem in the Federal Court?

MR SMITH: Yes. So the points before Federal Magistrate Driver were very general and had nothing to do with this application.

GUMMOW J: Yes, I see Mr Zipser appeared in the Federal Court. Did he appear in the Magistrates Court?

MR SMITH: No, the applicant was unrepresented in the Magistrates Court.

GUMMOW J: That is what I thought, yes.

MR SMITH: So Mr Zipser raised these points seeking leave and there was no particular objection taken to leave being granted, but his Honour Justice Conti found no error, in any event, and for that reason dismissed the application. Your Honours, unless there is anything further, those are our submissions.

GUMMOW J: Thank you. Yes, Mr Killalea.

MR KILLALEA: The point about Abebe, your Honour, was that the applicant there failed to disclose matters of rape and detention when she arrived at the airport and her credibility was lost thereafter, so that when she complained that there was a lack of procedural fairness in the Tribunal not raising those points with her at the hearing, then that point came to the High Court and the High Court said, no, that was not the case. But in this case this man’s credibility was never destroyed and he simply had a number of - - -

GUMMOW J: Is the highest it rises against your client the statement by the Tribunal at page 19, line 20:

The Tribunal asked the applicant questions about the structure and policies of the party and what role he played in the party. The Tribunal found that much of the applicant’s evidence was generalized and vague. The applicant did not give details unless pressed by the Tribunal.

MR KILLALEA: Yes, that is the highest it gets, your Honour. Just in closing what your Honour also said in Abebe, paragraph 194, was that:

That being so, it is not necessary to consider the validity of the premise from which this limb of the argument proceeded, namely, that the Tribunal was under some obligation to make some further inquiries.

So I submit that this Court has left it open as to whether or not the inquisitorial process in the Tribunal is answered simply by saying it is not an adversarial process. There are serious questions to be asked.

GUMMOW J: What is being spoken about there is a notion that the Tribunal has to roam the world looking for material on its own initiative.

MR KILLALEA: Yes, that is part of it, but I have taken your Honours to the - - -

GUMMOW J: That is not involved in this case.

MR KILLALEA: No, it is not, but I would just simply submit the general proposition stands that what was said in the Canadian cases to the effect that a tribunal ought sufficiently inform itself about the claims that are made to it, and I submit that that is an appropriate course to be taken as a matter of procedural fairness and it was not taken in this case. Those are my submissions, your Honour.

GUMMOW J: There will be a grant of special leave in this case. It would be, I would think, a half-day case, gentleman. Does that sound accurate?

MR KILLALEA: Yes, if the Court pleases.

AT 12.46 PM THE MATTER WAS CONCLUDED