SZHWY v Minister for Immigration and Citizenship

• Jurisdiction: Australia Federal only
• Judgment Date: 09 May 2007
• Neutral Citation: [2007] FCAFC 64
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64

MIGRATION – procedural fairness – legal professional privilege – hearing before Refugee Review Tribunal – whether a question asking an applicant for review to divulge the content of conversation with his legal representative without informing him of his right to claim legal professional privilege was asked in excess of the tribunal’s jurisdiction – whether the natural justice hearing rule in s 422B(1) of the Migration Act 1958 (Cth) affects legal professional privilege – whether the tribunal was under a duty to warn or inform the applicant of his right to legal professional privilege – whether the applicant had waived privilege by answering questions that revealed the substance of privileged communications – legal professional privilege as a common law immunity – no basis to suggest to tribunal any misuse of communication with legal representative or other abuse of legal professional privilege by applicant – legal professional privilege as an inviolable limitation on the tribunal’s inquisitorial powers

HELD – appeal allowed – original decision of tribunal quashed because (per Lander J) tribunal failed to inform applicant of right to claim legal professional privilege and (per Rares J) tribunal asked question beyond power in circumstances – matter remitted to tribunal to be decided in accordance with law

Evidence Act 1995 (Cth) ss 118 and 132

Migration Act 1958 (Cth) ss 422B(1), 433(1) and 433(1A)

Annetts v McCann (1990) 170 CLR 596

Arno v Forsyth (1986) 9 FCR 576

Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475

Attorney-General v Radloff (1854) 156 ER 366

Baker v Campbell (1983) 153 CLR 52

Benecke v National Australia Bank (1993) 35 NSWLR 110

Boyse v Wiseman (1855) 156 ER 598

Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121

Clough v Leahy (1904) 2 CLR 139

Coco v The Queen (1994) 179 CLR 427

Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501

Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403

Controlled Consultants Proprietary Limited v Commissioner for Corporate Affairs (1985) 156 CLR 385

Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543

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Mann v Carnell (1999) 201 CLR 1

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

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R v Bell; ex parte Lees (1980) 146 CLR 141

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R v Sloggett (1856) 169 ER 885

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McNichol, SB, Law of Privilege (The Law Book Company Ltd, 1992)

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SZHWY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2013 OF 2006

LANDER, GRAHAM AND RARES JJ

9 MAY 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2013 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHWY Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGES:	LANDER, GRAHAM AND RARES JJ
DATE OF ORDER:	9 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The first respondent’s description be changed to ‘Minister for Immigration and Citizenship’.

2. The appeal be allowed.

3. The first respondent pay the appellant’s costs.

4. Orders 2, 3 and 4 made by the Federal Magistrates Court on 27 September 2006 dismissing the appellant’s application be set aside and in lieu thereof there be orders that:

4.1 The application be allowed.

4.2 The decision of the Refugee Review Tribunal made on 21 November 2005 be quashed.

4.3 The application to the Refugee Review Tribunal dated 3 August 2005 be remitted to the Tribunal to decide the matter according to law.

4.4 The first respondent pay the applicant’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2013 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHWY Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGES:	LANDER, GRAHAM AND RARES JJ
DATE:	9 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

LANDER J:

The Facts

1 This appeal raises only one ground but it is an important one.

2 The appellant is an Egyptian citizen. He arrived in Australia on 9 November 2004 and, on 11 February 2005, applied for a Protection (Class XA) visa. On 23 July 2005 a delegate of the first respondent refused that application. On 3 August 2005 the appellant applied for a review of that decision.

3 On 21 November 2005 the second respondent (‘the Tribunal’) affirmed the Minister’s delegate’s decision.

4 On 11 April 2006 the appellant applied to the Federal Magistrates Court for a review of the Tribunal’s decision to affirm the first respondent’s delegate’s decision. A number of grounds were raised but, importantly, for the purpose of this appeal, the appellant claimed that the Tribunal failed to accord him procedural fairness because it ‘breach(ed) the applicant’s legal professional privilege’. Although the Federal Magistrate found that the Tribunal had asked questions of the appellant which breached the appellant’s legal professional privilege, he found that no jurisdictional error had been demonstrated and dismissed the application.

5 The appellant’s case before the Tribunal was that he feared persecution on two grounds. First, on religious grounds because he had converted from the Islamic faith to the Christian faith. Secondly, he feared persecution on the ground of his homosexuality.

6 The Tribunal did not accept that the appellant was truthful in claiming to have converted from Islam to Christianity and, indeed, found that he had invented those claims to advance his application for a protection visa.

7 The Tribunal accepted that homosexuals formed a particular social group in Egypt. It also accepted that:

‘… there is a real chance that persons taken into custody in Egypt on suspicion of homosexual activity face a real chance of torture, physical mistreatment and other human rights abuses amounting to persecution.’

However, it did not accept the applicant’s claim that he was a homosexual.

8 The appellant claims that the Tribunal failed to accord him procedural fairness in receiving evidence of a privileged communication he had with his solicitor. During the hearing before the Tribunal, the following exchange took place:

‘614. Tribunal Member Well if you first decided not to return in late December 2004, what did you think was going to happen?

615. Applicant Well I don’t know, I told you that I was too confused, you know I had a actually one meeting as well with a solicitor in Lakemba, I believe he call Salah I think so, but he was you know, he was, he was a Muslim in the beginning so I was too afraid to speak in front of him about the Christianity or about the Homosexuality as well

616. Tribunal Member What did you talk to him about

617. Applicant I came to him you know on a crazy idea about that I hate the Mobarak, the President

618. Tribunal Member You came to him what

619. Applicant I came to him in a crazy idea that I hate Mobarak, it just came to me like that (clicks fingers)

620. Tribunal Member That you hated work? I can’t

621. Applicant The president of Egypt

622. Tribunal Member oh I see I see, so you told him that you didn’t want to go back for political reasons?

623. Applicant Yes

624. Tribunal Member Did you

625. Applicant Because I couldn’t tell him about the homosexuality because I...